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South African Constitutional Law in Context
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Acknowledgements
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 To Lwando Scott

Pierre de Vos

To my wife, Margot, and my daughters, Jessica and Emily

Warren Freedman
PART ONE PRINCIPLES AND STRUCTURES OF
GOVERNMENT

CHAPTER 1 SOUTH AFRICAN CONSTITUTIONAL LAW

IN CONTEXT

CHAPTER 2 BASIC CONCEPTS OF CONSTITUTIONAL

LAW

CHAPTER 3 SEPARATION OF POWERS AND THE

THREE BRANCHES OF GOVERNMENT

CHAPTER 4 SEPARATION OF POWERS AND THE

NATIONAL LEGISLATURE

CHAPTER 5 SEPARATION OF POWERS AND THE

NATIONAL EXECUTIVE

CHAPTER 6 SEPARATION OF POWERS AND JUDICIAL

AUTHORITY

CHAPTER 7 SEPARATION OF POWERS AND CHAPTER

9 INSTITUTIONS

CHAPTER 8 MULTILEVEL GOVERNMENT IN SOUTH

AFRICA

PART TWO THE BILL OF RIGHTS AND THE

ENFORCEMENT OF THE CONSTITUTION

CHAPTER 9 INTRODUCTION TO AND APPLICATION OF

 THE BILL OF RIGHTS

CHAPTER 10 THE LIMITATION OF RIGHTS

CHAPTER 11 CONSTITUTIONAL REMEDIES

CHAPTER 12 EQUALITY, HUMAN DIGNITY AND PRIVACY

RIGHTS

CHAPTER 13 DIVERSITY RIGHTS

CHAPTER 14 POLITICAL AND PROCESS RIGHTS

CHAPTER 15 ADMINISTRATIVE JUSTICE, ACCESS TO

INFORMATION, ACCESS TO COURTS AND
LABOUR RIGHTS

CHAPTER 16 SOCIO-ECONOMIC RIGHTS

The 1997 Australian comedy, The Castle, tells the story of the Kerrigan
family’s fight against the compulsory acquisition by the government of their
home to make way for an expanded runway at the airport. The father,
Darryl Kerrigan, hires an incompetent lawyer acquaintance, Dennis Denuto,
to assist the family, but when asked by the judge what section of the
Constitution he is invoking to challenge the expropriation, Dennis is unable
to assist the court. ‘There is no one section,’ he hesitantly tells the court.
‘It’s just the … the vibe of the thing, your Honour.’
After the Kerrigans lost the case, Lawrence Hammill, a retired Queen’s
Counsel, decides to argue it pro bono on appeal before the High Court of
Australia. Lawrence makes a persuasive case that the Kerrigans have the
right to just compensation under section 51(xxxi) of the Australian
Constitution and closes by paraphrasing Darryl’s own comments that his
house is more than just a structure of bricks and mortar: it is a home built
with love and shared memories. The Court rules in favour of the Kerrigans
and their case becomes a landmark precedent.
To some extent this textbook takes its inspiration from The Castle. It
recognises that a proper appreciation of South Africa’s Constitution requires
a keen understanding of both the ‘vibe’ of the Constitution, specifically its
broad aims of preventing a recurrence of the horrors of apartheid and of
promoting the social and economic transformation of our society, and a
detailed and precise understanding of the individual provisions of the
Constitution. It also requires an understanding of the jurisprudence of the
Constitutional Court that fleshes out these provisions.
This textbook therefore aims to provide students (and others interested in
the manner in which the Constitution must be interpreted and applied) with
a relatively succinct, yet comprehensive, overview of the constitutional law
of South Africa. The text is premised on the fact that South Africa’s
colonial and apartheid past continues to exert an influence on the attitudes
and social and economic circumstances of those who live in the country as
well as on the prevailing political culture. It embraces the notion that ours is
a transformative Constitution aimed at facilitating the creation of a fair,
equitable and just society in which the human dignity of every person is
respected and protected.
Given South Africa’s colonial and apartheid past, the individual
provisions of the Constitution can be understood as having the collective
purpose of ensuring (in the words of the late Nelson Mandela, the first
democratically elected President of South Africa) that ‘never, never and
never again shall it be that this beautiful land will again experience the
oppression of one by another’. As such, this book aims to situate the study
of South African constitutional law within the political, social and
economic context of present-day South Africa to enable readers better to
understand the provisions of the Constitution and their interpretation,
especially by the Constitutional Court.
The book aims to achieve this purpose by including tables, diagrams and
‘learning boxes’ containing relevant factual information about the socio-
economic and political realities in the country and its history, opinions from
a wide array of sources as well as excerpts from academic writing (which
are also aimed at encouraging critical thinking about the Constitution and
its interpretation). We hope that it provides a crisp yet detailed overview of
most of the pressing constitutional law issues in South Africa today, issues
which are not normally addressed in other courses in the standard LLB
curriculum. We further hope that the book signals that many constitutional
law issues can be approached from different angles, thus encouraging
further reading and critical analysis and engagement with many of the most
pressing constitutional law issues that are often hotly debated in the South
African media.
The editors deliberately recruited a team of dedicated authors with
different levels of experience from many different academic institutions in
order to utilise and showcase the diverse talents of constitutional law
academics in South Africa. It is not surprising that working with a large
team of authors presented some challenges. The editors worked hard to
ensure that the contextual focus is retained throughout the book and that the
book retains a coherent tone and an even level of complexity. We hope that
the end result reflects at least some of this hard work. However, the book
would not have been possible without the assistance of the authors whose
dedication, we hope, is reflected in the final product. We would therefore
like to thank Danie Brand, Chris Gevers, Karthy Govender, Patricia
Lenaghan, Nomthandazo Ntlama, Douglas Mailula, Sanele Sibanda and Lee
Stone for their hard work in making this book a reality.
Apart from the authors, we would also like to thank the staff of Oxford
University Press, and especially Penny Lane and Tarryn Talberg, for their
hard work and patience. But we wish to single out Jessica Huntley from
Oxford University Press, whose diplomatic skills, tireless attention to detail
and unstinting support and encouragement sustained us throughout the
process of editing the book. Without Penny, Tarryn and Jessica’s
commitment to this book, it might not have seen the light of day.
Pierre de Vos and Warren Freedman
December 2013
PIERRE DE VOS (Editor)
BComm (Law), LLB, LLM (cum laude)(Stellenbosch); LLM (Columbia,
NY); LLD (Western Cape)
Pierre de Vos holds the Claude Leon Foundation Chair in Constitutional
Governance in the Department of Public Law at the University of Cape
Town, where he lectures on constitutional law. Prior to joining the
University of Cape Town, he lectured and held a Professorship at the
University of the Western Cape. He is Chairperson of the Board of the Aids
Legal Network, and is a Board member of the Triangle Project. Author and
co-author of numerous articles for academic publications, Pierre also writes
regularly, from a constitutional law perspective, for his widely read and
quoted blog which addresses social and political issues.
WARREN FREEDMAN (Editor)
BComm, LLB (Witwatersrand); LLM (Natal); Advanced PG Certificate in
Higher Education (KwaZulu-Natal)
Warren Freedman is an Associate Professor in the School of Law at the
University of KwaZulu-Natal, Pietermaritzburg where he lectures on
constitutional law, environmental law, and property law. His particular
research interests include sub-national constitutional law, local government
law, land use and planning law, and coastal zone management law. Warren
has published a wide range of articles on constitutional law and was a
member of the panel of experts appointed to advise the KwaZulu-Natal
Provincial Legislature on the drafting and adoption of a provincial
constitution in 2004/2005.
DANIE BRAND
BLC (Pretoria), LLB (Pretoria); LLM (Emory); LLD (Stellenbosch)
Danie Brand is an Associate Professor in the Department of Public Law at
the University of Pretoria, where he lectures on aspects of constitutional
law, administrative law and land reform law, and publishes in the fields of
constitutional law and theory. Danie is a member of the University of
Pretoria Centre for Human Rights, the International Association of
Constitutional Law, and the editorial board of the Pretoria University Law
Press (PULP). He is an Advocate of the High Court of South Africa, and an
Associate Member of the Pretoria Society of Advocates.
CHRISTOPHER GEVERS
LLB (KwaZulu-Natal); LLM (London School of Economics)
Christopher Gevers is a Lecturer in the Faculty of Law at the University of
KwaZulu-Natal in Durban, where he lectures on human rights and
international law. His research focuses broadly on international law, with a
specific interest in international criminal law and international humanitarian
law, as well as international legal theory. He has acted as adviser to litigants
in cases concerning international law both in South Africa and abroad.
Christopher also acts as a consultant on issues relating to human rights and
international law for various non-governmental organisations.
KARTHIGASEN GOVENDER
LLB (London); LLB (Natal)(summa cum laude); LLM (Michigan)
Karthigasen Govender is a Professor in the School of Law at the University
of KwaZulu-Natal, Howard College campus, and is a fellow of St John’s
College, Cambridge. In 1996 he was appointed to the South African Human
Rights Commission by President Mandela, and in 2002 reappointed for a
second term by President Mbeki. He is a Senior Arbitrator for the South
African Local Government Bargaining Council. Karthigasen is a Barrister
(Middle Temple, Inns of Court, UK), an Associate Member of the
KwaZulu-Natal Society of Advocates, and an Advocate of the High Court
of South Africa. He has also acted as a Judge of the High Court of South
Africa. He has published work in the fields of constitutional and
administrative law.
PATRICIA LENAGHAN
BLC LLB (Pretoria), LLM (cum laude), LLD (Western Cape)
Patricia Lenaghan is an Associate Professor in the Department of
Mercantile and Labour Law at the University of the Western Cape where
she specialises in international trade law, regional integration and
development, and European Union law. Patricia practised in Gauteng as an
Attorney, Notary and Conveyancer of the High Court of South Africa
before joining the University of the Western Cape to pursue her academic
interests.
DOUGLAS MAILULA
B Proc (cum laude), LLB, LLM (South Africa)
Douglas Mailula is a Senior Lecturer in the Department of Public,
Constitutional and International Law at the University of South Africa
where he lectures in constitutional law, and advanced constitutional law and
fundamental rights. He is currently an assistant editor of the Comparative
and International Law Journal of Southern Africa (CILSA). Douglas was
formerly a Deputy Director of Mineral Policy Development in the erstwhile
Department of Minerals and Energy. He has published academic articles on
constitutional law, customary law, child law and family law in South Africa,
and has presented papers at national conferences on mining and mineral
law. Douglas is currently reading for his LLD.
NOMTHANDAZO NTLAMA
B Juris LLB (Fort Hare); Certificate in Comparative Human Rights, LLM
(Stellenbosch); LLD (South Africa)
Nomthandazo Ntlama was a Professor of Law in the Department of Public,
Constitutional and International Law at the University of South Africa
before joining the University of KwaZulu-Natal, where she is currently the
Dean of Research in the College of Law and Management Studies.
Previously, she was a Researcher on Equality at the South African Human
Rights Commission, and a Lecturer and Coordinator of the Human Rights
Projects attached to the UNESCO Oliver Tambo Chair of Human Rights, at
the Nelson Mandela School of Law, University of Fort Hare. Nomthandazo
was a board member of the Women on Farms Project in Stellenbosch, and
also a member of the Verloren van Thermaat Centre, and the Centre for
Indigenous Law at the University of South Africa.
SANELE SIBANDA
BA LLB (Cape Town); LLM (Witwatersrand)
Sanele Sibanda is a Senior Lecturer at the School of Law at the University
of the Witwatersrand where he teaches constitutional law and the law of
persons. His research interests lie within the areas of constitutional law,
customary law reform, decolonial theory and liberation theory. He has
taught, researched and published work on questions related to separation of
powers, administrative law, customary marriage, customary law reform and
South African constitutionalism from a critical perspective.
LEE STONE
LLB (Free State); LLM (Pretoria); Diploma in the Justiciability of
Economic, Social and Cultural Rights (Abo, Finland)
Lee Stone is a Senior Lecturer in the School of Law at the University of
KwaZulu-Natal’s Howard College campus, where she lectures in
administrative law, constitutional law, human rights, and gender and the
law. She is also an extraordinary lecturer at St Augustine University,
Mwanza (Tanzania). Lee is an Attorney of the High Court of South Africa,
and a member of the Board of Directors of Agenda, a feminist non-
governmental organisation based in South Africa. Previously, Lee held a
research position for the Refugee Rights Project at Lawyers for Human
Rights, South Africa, worked for the African Commission on Human and
Peoples’ Rights in The Gambia, and was a Legal Officer at the Institute for
Human Rights and Development in Africa (a Pan-African NGO based in
The Gambia). Prior to joining the University of KwaZulu-Natal she worked
at the Legal Resources Centre in Durban. She has published work widely in
the areas of international criminal law, the African regional human rights
system, gender and the law, and constitutional law.
South African Constitutional Law in Context is a pedagogically rich
learning resource. This book is designed to form a strong foundation of
understanding, to develop the skills to engage independently and
judiciously with legal principles, and to create skilled and proficient
professionals.
Brief description of the features:
Pause for Reflection: This feature instils a broader and deeper
understanding of the subject matter. It invites readers to interrogate or
reflect upon specific questions and issues, thereby stimulating discussion,
supporting independent intellectual thought, and developing the ability to
analyse and engage meaningfully with relevant issues.
Critical Thinking: This feature supports and encourages readers’ ability to
engage critically and flexibly with concepts and perspectives discussed in
the text. The content of this feature may highlight areas of controversy,
specific criticisms of the law, or possible options for law reform. It builds
an awareness of various opinions about a particular principle, assists readers
to engage with issues and debates from various perspectives, and develops
readers’ skills in formulating and analysing legal argument.
This Chapter in Essence: Primarily directed at supporting readers’
orientation, this section maps the key areas and core topics which are
covered within each chapter in a succinct list of essential points.
Glossary: The text is supported by a comprehensive glossary that
succinctly explains and contextualises the key terms and concepts which
appear in the text. All terms which are included in the glossary words are
styled as bold-grey text within the book.
Diagrams: These Figures provide visual overviews for some concepts in
the book. This feature reinforces understanding, helps to clarify key
concepts, and illustrates the interrelationship between distinct legal
concepts.
PART ONE

Principles and structures of

government

CHAPTER 1 South African constitutional law in context

CHAPTER 2 Basic concepts of constitutional law

CHAPTER 3 Separation of powers and the three branches

of government

CHAPTER 4 Separation of powers and the national

legislature

CHAPTER 5 Separation of powers and the national

executive

CHAPTER 6 Separation of powers and judicial authority

CHAPTER 7 Separation of powers and Chapter 9

institutions

CHAPTER 8 Multilevel government in South Africa

South African constitutional law
in context

1.1 Introduction
1.2 The historical-legal context: from colonial conquest to
democracy
1.2.1 Pre-Union developments
1.2.2 The Union of South Africa and the bifurcated state
1.3 The transition to democracy
1.3.1 The run-up to the first democratic election
1.3.2 CODESA, the MPNF and the two-stage transition
1.3.3 Drafting and adoption of the final 1996 Constitution
1.4 The South African Constitution of 1996
1.4.1 The transformative nature of the Constitution
1.4.2 Interpretation of the South African Constitution
1.4.3 Context: an inegalitarian society and a one-party
dominant democracy
Summary

1.1 Introduction
A constitution is often said to be the founding document of a nation as the
authority of the state is derived from it. It sets up the structures of
government and authorises as well as regulates the exercise of power by the
elected branches of government and the judiciary (and, in some instances,
private institutions and individuals). It also places limits on the exercise of
that power and sets out the ground rules according to which a country must
be governed. However, democratic constitutions are not mere technical
legal documents that contain detailed provisions prescribing the manner in
which the legislature, the executive, the judiciary and other organs of state
exercise public power and setting limits on the exercise of those powers to
protect citizens. Hence, we cannot profitably study the constitutional law of
a democratic state in the abstract, as if the historical context out of which
the constitution emerged and the current social, economic and political
realities of this state have no bearing on an interpretation and evaluation of
the various provisions of a written constitution.1 Nor can we ignore the
broader global context within which the constitution operates.
Constitutional law can therefore arguably be described as the most
‘political’ branch of the law.
In critically evaluating the manner in which constitutions actually
operate in practice and in judging the successes and failures of various
aspects of a constitutional design, we should start with, but cannot
exclusively rely on, the text of the constitution to gain a comprehensive
picture of how this constitution operates. We also need to consider the
wider context in which that constitutional text finds application.
Constitutions are often said to represent a snapshot of the hopes and dreams
of a nation at the time of its writing or – more cynically – to represent a
snapshot of the relative political power and influence of various political
formations involved in the drafting of that constitution.
However, constitutions are also living documents that judges have to
interpret and apply in an ever-changing political, economic and social
environment. A constitutional text often contains open-ended and relatively
general language. In constitutional democracies, therefore, judges have to
interpret, apply and flesh out the meaning of the constitutional text. The
interpretation and application of the various provisions of a constitution will
not necessarily remain static. Judges will often reinterpret and reapply the
text. These judges are, after all, human beings who do not float above the
world like disembodied ghosts completely untouched by the society in
which they live. Judges are the products of the society in which they live.
They will, despite their best efforts, interpret the often open-ended and
general provisions of a constitution in ways that are not entirely ‘objective’
and may change over time as social, economic and political circumstances
change. Many of the justices of South Africa’s Constitutional Court have
tentatively acknowledged the open-ended nature of the language of the
South African Constitution. They have admitted that there may be a need to
refer to extra-legal values and texts, including the South African political
context and history, to justify their decisions.

PAUSE FOR REFLECTION

Approaches to interpreting a constitution

In the first decision handed down by the Constitutional
Court of South Africa in S v Zuma and Others, Kentridge J
signalled an awareness of (but skirted) the issue of what
judges should do when confronted with a constitutional text
that contains sometimes vague and open-ended phrases
when he remarked:
I am well aware of the fallacy of supposing that general language
must have a single ‘objective’ meaning. Nor is it easy to avoid the
influence of one’s personal intellectual and moral preconceptions.
But it cannot be too strongly stressed that the Constitution does
not mean whatever we might wish it to mean.2

One of the most perplexing questions in law relates to the

manner in which judges should interpret the often open-
ended or even vague provisions of a constitution. If judges
merely make the constitution mean whatever they wish it to
mean, they will be accused of being politicians and not
judges. If they are not constrained by the text of the
constitution or by other extra-legal but objective criteria,
their decisions may lack legitimacy as judges are not
 elected and cannot be seen to make up the meaning of the
constitution as they go along. This is why judges often
state that they are constrained by the text of the
constitution and, if the text is vague, why judges resort to
factors such as context or the history of a country to give
meaning to the provisions in a constitution.

In this chapter we therefore discuss the constitutional history of South

Africa, a history that has been dominated by colonialism and apartheid
and the resulting struggle for freedom and democracy which finally led to
the adoption of South Africa’s 1996 Constitution. We explore the manner in
which the South African Constitution came into being and the nature of
South Africa’s transition from an authoritarian race-based autocracy to a
constitutional democracy. We also explore the current social, political and
economic context within which the South African Constitution must
operate, We focus, in particular, on the legacy of apartheid and the role of
political parties in South Africa’s current one-party dominant democracy.3
We then briefly introduce the main features of the South African
Constitution and pose questions about how this Constitution may be
classified and how it should be interpreted.

1.2 The historical-legal context: from

colonial conquest to democracy
South Africa’s political history is often wrongly said to have begun in 1652
when Jan van Riebeeck arrived in South Africa and the process of
colonisation formally commenced. Similarly, South Africa’s constitutional
history is often said to have begun in 1910 when the South African state in
its present form was created and the Union of South Africa came into
existence with the passing of the Union of South Africa Act, 1909 (the
South Africa Act or the Union Constitution) by the British Parliament.4
This decidedly colonial approach to history, which views history through
the eyes of those settlers who arrived in South Africa from Europe, is no
longer viewed as either tenable or credible. It ignores the fact that Khoisan-
speaking hunters and herders already occupied western parts of the country
while agro-pastoralists occupied large parts of the eastern part of the
country at the time when settlers from Western Europe arrived at the
southern tip of Africa.5
However, it is difficult not to revert to colonial imposed markers when
discussing the historical context out of which the modern democratic state
in South Africa emerged. There are a number of reasons for this. First, pre-
colonial history was never written down. Second, there is insufficient clarity
about the multitude of governing structures through which pre-colonial
indigenous populations of South Africa governed themselves. Third,
South Africa with its current borders legally came into existence only in
1910. In the section that follows we nevertheless attempt to draw attention
to the fact that South Africa’s political and legal history can be viewed
through various lenses and that we cannot ignore the legal pluralistic nature
of South African society and legal culture when discussing the historical
context out of which South Africa’s 1996 Constitution emerged.

1.2.1 Pre-Union developments

It is important to understand the complex nature of pre-democratic
governance structures in South Africa as these structures continue to have
an effect on South Africa’s democratic constitutional order. A number of
centrally governed societies emerged in the geographical territory now
known as South Africa from the seventeenth century onwards. In colonial
enclaves in the Cape in the western parts of the region and in parts of Natal
in the east, the development of constitutional forms mirrored those of other
British colonies with large European settler populations.
In the Cape, executive government emerged with a British-appointed
Governor and an advisory council of white settlers. In 1853, this developed
into a representative form of government with an appointed Governor but
an elected legislature. Finally, in 1872, a system of responsible government
emerged with a Governor-General representing the British Crown and an
elected legislature whose support was needed for the formation of an
executive council.6 This meant that locally representative executives
governed these territories, but the British-appointed Governor-General had
to approve legislation. The Governor-General, in effect, had a veto power
over bills which could be exercised on the advice of the British government.
Moreover, the British government also had the power to ‘disallow’ bills
passed by the colonial legislatures within a period of one year from the date
the bill was passed. This in effect nullified these bills.7 The governance
structures therefore mirrored the Westminster system in place in Britain
although the arrangement retained final control over the colonies for the
British government.
Nevertheless, these governing structures firmly established the principle
of the supremacy of the legislature on South African soil.8 This meant that
the legislature by and large had a free hand to pass any legislation it wished
as long as it followed the requisite procedures. Courts were not empowered
to test the laws passed by the legislature against a bill of rights and could
not declare legislation invalid even where that legislation infringed on the
rights of citizens.
To the north of the Cape, two Boer Republics (the Orange Free State and
the South African Republic, also known as the Transvaal Republic)
emerged in the mid-nineteenth century. Both these Republics rejected the
Westminster system described above. Under the influence of the
constitutions of the United States, France and the Netherlands, the Boer
Republics embraced a form of governance based on the principle of the
separation of powers with directly elected presidents. The Orange Free
State also had a justiciable Bill of Rights that guaranteed rights of peaceful
assembly, petition, property and equality before the law. In addition, rigid
rules were prescribed for the amendment of the Orange Free State
Constitution of 1854.9
However, despite the fact that the Orange Free State Constitution
formally recognised the right of courts to review legislation, this power was
used only once. Moreover, the protections in the Constitution were of
limited application as they were interpreted to be reserved for white males
only.10 This early tentative experiment in constitutionalism was thus
tainted by a notion of racial citizenship which later came to dominate
constitutional law and practice in a unified South Africa.11
 In the South African Republic (Transvaal), the Constitution of 1858 was
blatantly racist. It provided that ‘the People desire to permit no equality
between coloured people and white inhabitants, either in Church or
State’.12 In the Transvaal, an attempt in 1892 by Chief Justice JG Kotze to
review and strike down legislation of the legislature (Volksraad) on the
basis that it conflicted with the Constitution created a constitutional
crisis.13 President Paul Kruger rejected the right of the court to review and
strike down legislation and eventually fired the Chief Justice. When
swearing in a new Chief Justice, President Kruger warned the judges that
‘the testing right is a principle of the devil’, which the devil had introduced
into paradise to test God’s word.14
Those parts of South Africa not directly subjected to colonial domination
exhibited various forms of indigenous governance structures loosely
centred on the concept of chiefdoms. These chiefdoms usually had a similar
governance hierarchy consisting of a chief, a paramount chief or a king.
Below them were headmen who were representatives of leading families.
Headmen were responsible for affairs within a defined geographical area
and reported to the chief. The chief, together with his headmen, constituted
a council. Below the chief and headmen were family or kraal heads. The
chief’s role was to adjudicate disputes fairly and to provide for the well-
being of his people by applying a living customary law which developed
through its application by chiefs. To empower the chief to meet his
obligations, he was vested with secular powers and was granted certain
privileges that he was entitled to exercise.15
The selection of a chief was rooted in ancestry and traditional leaders
were born into the role rather than selected and trained. We must be careful
not to evaluate the traditional leadership structures through the lens of
Western-imposed governance structures. It is therefore not profitable to
evaluate these structures with reference to concepts such as the separation
of powers or parliamentary sovereignty. Nevertheless, although chiefs had
wide powers, these were not unlimited. Chiefs were generally required to
consult with their councillors in certain matters and were always required to
act for the benefit of their people.16 Potential challenges to the office of the
chief also acted as an incentive to ensure that chiefs acted appropriately.17
 The emergence of the Zulu Kingdom, which eventually spanned large
parts of what is now known as KwaZulu-Natal, represents a modification to
this governance model. The Zulu Kingdom began with the reign of
Dingiswayo, Chief of the Mthethwa, who ruled from 1808 to 1818. King
Dingiswayo conquered several chiefdoms with the assistance of a
reorganised military. This had important sociopolitical implications since it
weakened the influence of territorially based kinship relations. Dingiswayo
also changed the political order by centralising power over the conquered
area.18
After the death of King Dingiswayo, King Shaka seized power. Shaka
gathered a large number of chiefdoms into one entity and incorporated the
defeated troops into the Zulu military. Although some chiefdoms were able
to disperse into other territories, Shaka’s wars resulted in the merging of
some 300 formerly independent chiefdoms into the Zulu Kingdom. Shaka
ordered his warriors to remain unmarried and controlled the organisation of
his military regiments. This further weakened traditional kinship ties and
the powers of the elders in favour of his central authority. However, the
purported authoritarian rule of Shaka still relied on a delicate system of
delegated chiefly powers. Shaka was assisted by a staff of chiefs who
surrounded him in the royal kraal (a territorial dwelling unit with the house
of the King located at the centre). While Shaka needed the chiefs to execute
his will, he was careful to limit their effective powers and it is argued that
he stirred rivalry among them so that they would check one another but
never dispute his will.19

COUNTER POINT

Different viewpoints on the evaluation of

indigenous governance structures
There is a fundamental difference between the governance
structures of the indigenous societies of South Africa and
the governance structures imposed by the British colonial
regime. Some commentators argue that the indigenous
structures valued community and the relationships
 between individuals and groups. This mitigated what may
appear from the vantage point of the modern state to be an
autocratic and undemocratic arrangement. Chiefs relied on
the goodwill of their subjects, so it is argued, and hence
were required to rule wisely and humanely. Where this did
not happen, chiefs could be removed and this acted as a
check on the power of the chiefs. Others point to the
essentially patriarchal nature of the arrangement and
contend that the arrangement was, at the very least,
deeply sexist as it negated the role of women in society.
When evaluating these various governance structures of
the era, it would be difficult to do so except through the
distorted twenty-first century lens. However, it can be
argued that the governance structures of traditional
indigenous societies in South Africa have something to
offer a South African constitutional law scholar as they are
often said to have been based on a kind of communalism.
This indirectly finds resonance in the co-operative
government provisions in the modern South African
Constitution. Nevertheless, if we judge these structures
from the modern-day vantage point, they may seem
problematic as they are not based on the same democratic
principles that we take for granted in a modern
constitutional state.

The various forms of governance and the customary powers of traditional

leaders described above remained largely intact as the British extended their
colonial domination across southern Africa. Nevertheless, over time – as
the territorial expansion of colonial governments proceeded apace –
indigenous South Africans were increasingly subjected to the authority of
the colonial powers. This led to a situation in which colonial governments
became the primary source of the traditional leader’s authority.
In 1894, the Glen Grey Act 20 was passed in the Cape Colony. This Act
effectively excluded the vast majority of Africans from the Cape
Parliament. It also weakened the authority of the system of chiefs by
replacing them with a system of government-appointed district councillors.
In addition, the Act introduced separate ‘reserve’ areas where Africans were
supposed to stay if they were not selling their labour to white-owned
institutions in cities and towns. The Act was thus designed to set a pattern
of African land-holding – individual plots in separate ‘reserves’ –
throughout the ‘Cape African reserves’.21 It assigned certain geographical
areas for use by blacks and others for whites under a distorted version of the
communal system of land tenure. The Glen Grey Act can therefore be said
to be a forerunner of the more all-encompassing segregationist and
apartheid measures, especially the creation of territorially separate areas for
African occupation after 1910.22
By 1903, the Native Affairs Commission (the ‘Langden Commission’)
had developed a vision for a future South African union based on the
territorial segregation of black and white as a permanent mandatory feature
of public life.23 The Commission endorsed the practice of creating ‘native
reserves’ and accepted the notion that this involved special obligations on
their part to the colonial state. ‘Natives’ were seen as having special rights
to these pieces of reserved land as the ‘ancestral land held by their
forefathers’. ‘Native reserves’ were held communally and administered by
tribal chiefs who were said to have transferred their sovereign rights over
land and their absolute political authority to the Crown through a process of
‘peaceful annexation’.24 The assumption of the ‘peaceful annexation’ of
land was a fiction which served the interests of the colonial rulers. These
developments set the scene for the formation of a bifurcated state when the
various territories now known as South Africa were unified into the Union
of South Africa in 1910 and can clearly be seen as the precursor for the
elaborate system of apartheid.25

PAUSE FOR REFLECTION

Recognition of traditional governance structures

in the Constitution
 Constitutional law textbooks have often ignored the
governance structures of indigenous South Africans as well
as the customary law applied by chiefs during the pre-
Union period. They have tended to focus exclusively on the
imposition of the Westminster model by the British and on
the importation of Roman-Dutch and English common
law. This is not surprising as such textbooks have been
written from a Western perspective.
Today, the Constitution partly recognises traditional
governance structures. However, as we shall see, these
traditional governance structures were transformed in their
encounter with the colonial rulers and this affected their
development. These developments help to explain the
present arrangement in South Africa in which traditional
leaders and the application of customary law are made
subject to the provisions of the 1996 Constitution.

1.2.2 The Union of South Africa and the bifurcated

state
After the British defeated the armies of the Boer Republics during the
Anglo-Boer War of 1899–1902, the territory now known as South Africa
largely came under the influence of the British government. However, as
part of a policy of granting self-rule to white colonists in its various
colonies, Britain facilitated negotiations that led to the formation of the
Union of South Africa in 1910. Black South Africans were not invited to
take part in these negotiations. This process of negotiation resulted in the
drafting of the South Africa Act (the Union Constitution). This Act brought
together the four settler colonies – Cape, Natal, Orange Free State and
Transvaal – as well as the various indigenous groupings in South Africa in a
single unitary state known as the Union of South Africa. The Constitution
establishing the Union in essence granted parliamentary democracy to the
white minority within the borders of present-day South Africa. However,
this settlement largely ignored the political aspirations of indigenous South
Africans and subjugated the black majority to autocratic administrative rule.
 It is true that the drafters of the Union Constitution reached a
compromise that allowed the Cape to retain its provision for limited voting
rights for black citizens.26 However, the northern provinces were allowed
to exclude all participation by black South Africans in the electoral process.
The retention of this very limited franchise for black South Africans in the
Cape did not change the essentially racist and paternalistic nature of the
founding Constitution of South Africa. African society was presented as
essentially ‘traditional’ and was to be governed by chiefs under the
paternalistic ‘protection’ of the white government. The South African polity
was therefore divided into two distinct spheres – one white and one black.
This reflected the colonial character of South Africa’s legal culture in which
‘professed legalism with its accompanying rhetoric of justice’ coexisted
with the racist abuse of power by the state.27 Thus section 147 of the Union
Constitution stated that the ‘control and administration of native affairs …
throughout the Union shall vest in the Governor-General in Council’. The
Governor-General in Council was given ‘all special powers in regard to
native administration’.
This ‘colonialism of a special’ type thus established a Westminster-style
parliamentary system. Under this system, a pseudo-democratic white state
co-existed with an authoritarian order in which the majority of the country’s
people lived under a classic system of colonial indirect rule.28 Traditional
versions of South Africa’s constitutional history produced before 1994
ignore this bifurcated nature of the South African state between 1910 and
1994.29
As noted above, the Constitution establishing the Union of South Africa
was largely applicable to white citizens only. This Constitution followed the
British model and opted for a Westminster-style system of parliamentary
government and a form of parliamentary supremacy. The Union
Parliament consisted of two Houses, the House of Assembly and the Senate.
The House of Assembly was directly elected by the limited number of male
citizens who had the right to vote. The members of the Senate were partly
indirectly elected by the House of Assembly and partly nominated. South
Africa was also established as a unitary state rather than a federal state.
However, the four former colonies were retained in the form of four
provinces and each province had equal representation in the Senate.
The most striking aspect of the Union Constitution was, however, the
fact that it retained a system of parliamentary supremacy. Despite this, the
South African legislature was restrained, initially at least, in two important
ways which imposed limits on the sovereignty of the newly created
Parliament.
First, until the British Parliament adopted the Statute of Westminster in
1931, Parliament was, in theory, still bound by the provisions of the
Colonial Laws Validity Act, 1865. This meant that the Union Parliament
could not legislate extraterritorially or in a manner repugnant to any Act of
the British Parliament which had been made applicable in South Africa. All
bills passed by the South African Parliament had to be sent to the Governor-
General (as representative of the British Crown) for assent before they
could become law. The Governor-General could assent to the bill, refuse his
assent or reserve it for the King’s decision. The King made his decision
based on the advice of the British cabinet. The British monarch also had the
power to disallow a bill within one year after the bill had received the
assent of the Governor-General, a power once again exercised on the advice
of the British cabinet. In practice, little or no control was ever exercised and
the powers referred to above were never used before they were scrapped by
the Statute of Westminster.30
Second, a small number of clauses in the Union Constitution required
Parliament to use a special procedure before they could be amended. These
entrenched sections protected the limited franchise for blacks in the Cape
31 and the guarantee of the equality of the two official languages (English
and Dutch).32 Thus, Parliament could amend any section of the
Constitution with a simple majority in each of the Houses of Parliament
sitting separately. However, section 152 of the Union Constitution required
that any alteration of the above sections (as well as section 152 itself) would
only be valid if the bill was passed by both Houses of Parliament sitting
together and agreed to at the third reading of the bill by not less than two-
thirds of the total number of members of both Houses.33 Despite the
procedural protection of the limited franchise, all African voters (those who
lived in the Cape Province and had retained their right to vote in the deal
struck in 1909) were nevertheless removed from the common voters roll
and given separate representation in 1936.34
The Union’s first full-blown constitutional crisis arose after the National
Party (NP) narrowly won the parliamentary election in 1948 on the basis,
among others, that it would impose absolute racial segregation on South
Africa. In 1951, the NP attempted to remove ‘coloured’ voters from the
common voters roll by adopting the Separate Representation of Voters
Act.35 A group of voters challenged the Act on the basis that the procedure
required by section 152 of the Union Constitution was not used. In Harris
and Others v Minister of the Interior and Another,36 a unanimous
Appellate Division (AD) found that the Separate Representation of Voters
Act was of no force because the correct procedure had not been used to pass
the amendments. After further legislative and judicial manoeuvres, in which
the NP was again thwarted, it increased the size of the AD from five to
11 judges and also increased the size of the Senate.
When this legislative move was again challenged in Collins v Minister of
the Interior,37 10 of the 11 judges upheld the challenged amendments to
the Union Constitution.38 This brought an end to the limited voting rights
enjoyed by black South Africans and until partial reforms were introduced
in 1983, only white South Africans could vote in parliamentary elections. In
1958, the whites-only Parliament adopted the South Africa Amendment
Act.39 This Act prohibited any court of law in South Africa from enquiring
‘into or … pronounc[ing] upon the validity of any law passed by
Parliament’ other than those affecting the clause dealing with the two
official languages.40 When South Africa became a Republic in 1961, a new
constitution was adopted which confirmed the supremacy of Parliament.
Section 59 of the 1961 Constitution thus stated that: ‘Parliament shall be the
sovereign legislative authority in and over the Republic, and shall have full
power to make laws for the peace, order and good government of the
Republic’. This extreme form of parliamentary supremacy, which became
dominant in South Africa after 1948 and the rise of Afrikaner nationalism,
is said to have ‘brought about the debasement of the South African legal
system’ and brought it to its ‘logical and brutal conclusion’ to the detriment
of a respect for human rights.41 However, it may well be argued that it was
the combination of this extreme form of parliamentary sovereignty and the
inherently racist nature of the bifurcated constitutional system which gave
the South African state its particularly brutal character before the advent of
democracy in 1994.

COUNTER POINT

An extreme version of parliamentary sovereignty

In Sachs v Minister of Justice; Diamond v Minister of
Justice,42 the AD had to consider the validity of a banning
order issued by the Minister in terms of the relevant
provisions of an applicable Act. Banning orders prohibited
a person from being present in specific areas because the
Minister was satisfied that the person ‘is in any area
promoting feelings of hostility between the European
inhabitants of the Union on the one hand and any other
section of the inhabitants of the Union on the other
hand’.43 Banning orders were a powerful tool used by the
authorities to restrict the political activities of those
opposed to the policies of the government. In rejecting the
challenge to the banning order, Stratford ACJ made the
following statement about the nature of parliamentary
sovereignty in South Africa:
[O]nce we are satisfied on a construction of the Act, that it gives to
the Minister an unfettered discretion, it is no function of a Court of
law to curtail its scope in the least degree, indeed it would be quite
improper to do so. The above observation is, perhaps, so trite that
it needs no statement, yet in cases before the Courts when the
exercise of a statutory discretion is challenged, arguments are
sometimes advanced which do seem to me to ignore the plain
principle that Parliament may make any encroachment it chooses
upon the life, liberty or property of any individual subject to its
sway, and that it is the function of courts of law to enforce its will.
 In the present case we were referred to many decisions dealing
with the exercise of discretionary powers. In this division, at all
events, no decision affirms the right of a Court to interfere with the
honest exercise of a duly conferred discretion. For the sake of
greater caution I should perhaps add, that in exercising a conferred
discretion, the procedure laid down in terms of its grant must, of
course, be observed as essential conditions of its exercise.
Interferences when they have occurred are justified on one of two
broad grounds, either that (a) the exercise has not been honest or
(b) that the discretionary power has been exceeded.44

The view expressed by Stratford ACJ represents an

extreme version of the nature of parliamentary sovereignty.
It is also far less compatible with the notion of democracy
than a view which limits the power of the legislature to
adopt legislation that encroaches on the rights of citizens
and allows judges to review and set aside legislation and
the actions of members of the executive if this is needed to
protect and safeguard the rights of individuals. This is
because democracy itself can be subverted if the rights of
citizens to exercise their democratic rights are not
protected.

After the Union of South Africa was established in 1910, the bifurcated
nature of the South African state led to the adoption of several laws by the
Union Parliament aimed at developing legal mechanisms to entrench further
a classic form of indirect colonial rule. The Black Administration Act of
1927 (BAA)45 was a lynchpin in this system which reaffirmed the rule of
chiefs within so-called ‘reserves’ and that subordinated their rule to the
power of the ‘white’ government and its officials.46 The BAA made the
Governor-General the supreme chief with the authority to create and divide
tribes and appoint any person he chose as chief or headman – even in the
face of popular opposition from a community.47 The BAA to some extent
built on the Glen Grey Act and further subverted the traditional governance
structures based on chiefs selected via kinship. It allowed for the
appointment of traditional leaders from outside the ruling families, creating
scope for a body of government lackeys, who were compliant with
entrenched party political interests, to assume the role of traditional leader.
It has been remarked that the BAA:
was intended to shore up the remains of chieftaincy in a
country-wide policy of indirect rule, which would allow
for segregation in the administration of justice. The
policy was aptly named ‘retribalisation’, giving chiefs the
semblance of power and hoping that this would
safeguard the allegiance and acquiescence of the Reserve
residents.48
The BAA conferred civil jurisdiction on chiefs who could apply the
customary law to their subjects in most private law civil disputes. However,
in practice, Africans had a choice of courts to which they could take their
civil case – the magistrates’ courts or the chiefly authority. The magistrates
obviously wielded much more power than the chiefs in relation to the
central government, but the chiefs were given a niche in the local arm of
administration which ‘they seized with alacrity’.49
As the confidence of the ruling NP government grew in the years after
1948, it stepped up political repression while simultaneously trying to
create a system based on ethnic nationalism within a tribal context. Thus,
the implementation of a system of indirect rule accelerated with the
adoption of the Bantu Authorities Act 50 in 1951 and, by 1959, legislation
which created a system of homelands.51 The system divided South Africa
into several ‘self-governing’ territories where each ethnic group was
accommodated in a separate homeland (the former ‘native reserves’). These
homelands were envisaged as the sole mechanisms through which Africans
would be able to exercise their political aspirations. People classified as
‘coloured’ or ‘Indian’ were not accommodated in this system at all.
Eventually, certain of the homelands were granted ‘independent’ status52
but other homelands never achieved or refused to take up an offer of
‘independence’. Chiefs held half the seats in the legislative assembly of the
homelands ex officio and thus assured the leading parties of support.53
 It is important to note that this social engineering had devastating
consequences for the traditional governing structures of indigenous South
Africans. It transformed chiefs by bringing them directly into the service of
the state. It became more and more difficult for chiefs to claim legitimacy,
to win respect from their followers and to implement the provisions of the
Bantu Authorities Act at the same time.54 With the advent of democracy,
the role of traditional leaders, and especially chiefs, has become
controversial given the manner in which the system was manipulated during
the colonial and apartheid eras. This role is perceived to be inherently
undemocratic and patriarchal as it is both hereditary and reserved for
men.55 However, despite concerns surrounding the undemocratic essence
of tribal leadership, it remains an important part of South Africa’s cultural
heritage which, despite allegations of corruption, receives some popular
support.56
By the late 1970s, the apartheid state had come under increasing pressure
both internally and externally as opposition and resistance to apartheid and
white minority rule increased and the struggle for freedom by the black
majority gathered momentum.57 In response, the apartheid government of
Prime Minister PW Botha (who became Prime Minister in 1979) opted for a
process of so-called ‘reform’ to try to reincorporate people classified as
‘Indian’ and ‘coloured’ under the apartheid system into the political system.
This led to the 1983 Constitution58 which extended the franchise to
coloureds and Indians in a tricameral legislature.
This new constitutional system (whose introduction was fiercely resisted
by the majority of South Africans) created three separate Houses of
Parliament: one chamber for whites, one for Indians and one for coloureds.
The jurisdiction for each House was distributed according to whether an
issue dealt with an ‘own’ affair or ‘general’ affair. Own affairs were
vaguely defined and were deemed to be matters ‘which specially or
differentially affect a population group in relation to the maintenance of its
identity, traditions and customs’.59 Each House was given powers to deal
exclusively with these ‘own affairs’. ‘General affairs’ were defined as
matters which were not own affairs.60 The white minority government
retained control of this system through a provision in the Constitution that
stated that the State President took the final decision on whether an issue
dealt with an own affair or a general affair.61
Each House enacted legislation dealing with ‘own affairs’ related to its
race group while all three Houses of Parliament dealt with general affairs.
However, in effect, the tricameral Constitution ensured that the exercise of
power would remain firmly entrenched in the hands of the dominant white
majority party – the National Party. This was done, first, by centralising the
running of the government under the State President who was given
extraordinary powers in both the legislature and executive arena.62
Moreover, all significant decisions within the tricameral legislature – such
as the election of the President – would be automatically resolved by a 4:2:1
ratio of white, coloured and Indian representatives.63 This ensured that
even if the Indian and coloured Houses voted in unison, the will of the
white House would prevail.64
Despite these ‘reforms’, the African majority continued to be excluded
from the constitutional scheme. The apartheid government maintained that
South Africa would eventually be divided into one section over which the
tricameral Parliament would hold sway and the several homelands which
would obtain ‘independence’ and would govern all Africans living within
the original borders of the Union of South Africa. Africans living outside
the homelands were all deemed to ‘belong’ to one of the homelands and had
no political rights in the areas in which they actually lived. These ‘reforms’
backfired spectacularly and resistance to the apartheid government became
ever more fierce. Finally, in 1990, State President FW de Klerk lifted the
restrictions placed on liberation movements such as the African National
Congress (ANC), the South African Communist Party (SACP) and the Pan
Africanist Congress (PAC), and ordered the release of Nelson Mandela and
other liberation leaders from prison. The period of negotiations then
commenced.

1.3 The transition to democracy

1.3.1 The run-up to the first democratic election
The Constitutional Court has described South Africa’s past as that of a
‘deeply divided society characterised by strife, conflict, untold suffering
and injustice’ which ‘generated gross violations of human rights, the
transgression of humanitarian principles in violent conflicts and a legacy of
hatred, fear, guilt and revenge’.65 As the struggle against this system
intensified, the minority government, backed by a powerful security
apparatus, became more oppressive and authoritarian.66
Distinct but sometimes overlapping movements led the resistance to this
system of white minority rule: the ANC and the SACP with their internal
allies, the United Democratic Front (UDF) and large sections of the trade
union movement, as well as the PAC and the Black Consciousness
Movement, including the Azanian People’s Organisation (AZAPO). The
ANC was officially formed on 8 January 1912 and has a long and
complicated history of resistance to white political rule. Its stature grew as
it took a more defiant stance against the apartheid policies of the newly
elected NP after 1948 – especially after its Youth League under the auspices
of Oliver Tambo and Nelson Mandela successfully pressed the organisation
to adopt more militant methods in resisting the apartheid regime.
In June 1952, the ANC initiated the Defiance Campaign which employed
passive resistance strategies to resist the newly imposed legal restrictions on
black South Africans in general and Africans in particular. The ANC then
helped to engineer the drafting and adoption of the Freedom Charter with
the assistance of other opponents of apartheid, including the SACP, the
Natal Indian Congress and others.67 This Charter contained claims and
expressed the aspirations of large sections of the South African citizenry
oppressed by the apartheid regime, formulated in the format of a charter of
rights with a strong emphasis on non-racialism. As such, the Freedom
Charter is often seen as one of the founding documents of the human rights
culture which later found expression in the Bill of Rights contained in
South Africa’s 1996 Constitution.68

PAUSE FOR REFLECTION

Extracts from the Freedom Charter
The People Shall Govern!
Every man and woman shall have the right to vote for and to stand
as a candidate for all bodies which make laws;
All people shall be entitled to take part in the administration of the
country;
The rights of the people shall be the same, regardless of race,
colour or sex …

The People Shall Share in the Country’s Wealth!

The national wealth of our country, the heritage of South Africans,
shall be restored to the people;
The mineral wealth beneath the soil, the Banks and monopoly
industry shall be transferred to the ownership of the people as a
whole …

The Land Shall be Shared Among Those Who Work It!

Restrictions of land ownership on a racial basis shall be ended, and
all the land re-divided amongst those who work it to banish famine
and land hunger;
The state shall help the peasants with implements, seed, tractors
and dams to save the soil and assist the tillers;
Freedom of movement shall be guaranteed to all who work on the
land;
All shall have the right to occupy land wherever they choose;
People shall not be robbed of their cattle, and forced labour and
farm prisons shall be abolished.

All Shall be Equal Before the Law!

No-one shall be imprisoned, deported or restricted without a fair
trial;
No-one shall be condemned by the order of any Government
official;
The courts shall be representative of all the people …

All Shall Enjoy Equal Human Rights!

The law shall guarantee to all their right to speak, to organise, to
meet together, to publish, to preach, to worship and to educate
their children;
The privacy of the house from police raids shall be protected by
law …

There Shall be Houses, Security and Comfort!

All people shall have the right to live where they choose, be
decently housed, and to bring up their families in comfort and
 security;
Unused housing space shall be made available to the people;
Rent and prices shall be lowered, food plentiful and no-one shall go
hungry;
A preventive health scheme shall be run by the state;
Free medical care and hospitalisation shall be provided for all, with
special care for mothers and young children …

It is often said that the Freedom Charter is the intellectual

source for many of the provisions contained in South
Africa’s Bill of Rights. Like the Bill of Rights, the Freedom
Charter addresses both traditional civil liberties such as the
right to vote and the right to a trial as well as social and
economic rights concerns relating to housing and land,
among others. Although the historical and political context
in which the document was formulated influenced the
content of the provisions of the Charter and the way in
which the demands were formulated, it is remarkable that it
addresses many of the same concerns addressed in the
Bill of Rights.

The Sharpeville Massacre took place on 21 March 1960, a date now

commemorated as Human Rights Day in South Africa, when the South
African police opened fire on a protesting crowd, killing 69 people
(including eight women and 10 children), and wounding over 180. As a
result of the massacre, the ANC decided to change tactics and formed
Umkhonto weSizwe (MK) which was charged with using various forms of
violence to sabotage the apartheid state.69 The ANC as well as the PAC
were subsequently outlawed and their leaders went into exile or were
captured.
During the Rivonia Trial of 1963 and 1964, 10 members of the ANC –
including Nelson Mandela, Walter Sisulu, Govan Mbeki and Rusty
Bernstein – were tried for sabotage. Eight were found guilty and sentenced
to life imprisonment. Many other ANC leaders – including long-time ANC
President Oliver Tambo – fled into exile from where they orchestrated the
ANC’s resistance campaign against the apartheid state by mobilising
international opinion against the apartheid regime and orchestrating internal
resistance.
As the apartheid state increased its repression of political dissent,
resistance grew. From 1976 to 1990, ANC-aligned internal resistance
(under the flag of non-racialism and non-sexism) focused on the efforts of
the labour movement led by the Congress of South African Trade Unions
(COSATU) and the UDF. These internal allies of the ANC played a
significant role in putting pressure on the apartheid state, gradually bringing
the leaders of the governing NP to the realisation that it would eventually
have no option but to cede power and allow the formation of a democratic
state.
Meanwhile, the PAC had broken away from the ANC in 1959 because
they felt the ANC was too accommodating. They also believed that
liberation in South Africa had to be led by Africans without assistance from
white, coloured and Indian allies. Under the leadership of the charismatic
Robert Sobukwe, the PAC organised mass-based resistance campaigns
leading a nationwide protest against the hated Pass Laws which required
African people in so-called ‘white areas’ to carry a pass book at all times.
Sobukwe led a march to the local police station at Orlando, Soweto, to defy
openly the laws, which led to the Sharpeville Massacre. Following
Sobukwe’s arrest, he was charged and convicted of incitement, and
sentenced to three years in prison. After serving his sentence, he was
interned on Robben Island. The new General Law Amendment Act 70 was
passed, allowing his imprisonment to be renewed annually at the discretion
of the Minister of Justice. This procedure became known as the ‘Sobukwe
clause’ and went on for a further three years. Sobukwe was the only person
imprisoned under this clause and he remained imprisoned on Robben Island
until his release in 1969.71
The founding of the Black Consciousness movement is usually credited
to Steve Biko. However, the movement was probably also influenced by the
philosophy espoused by Robert Sobukwe and the PAC as it held that
liberation could not be achieved by multiracial institutions, parties or
movements. Biko challenged the notion – often said to be the root cause of
racism and racial domination inherent in South African society of the time –
that ‘whiteness’ was ‘normal’ and that ‘blackness’ was an aberration. He
aimed to infuse into the black community a sense of pride and self-
respect.72
The Black Consciousness movement influenced the Soweto uprising
which commenced on 16 June 1976, but Biko was later arrested, detained
and tortured. He died at the hands of the police in 1977. In the absence of a
strong leader and a viable organisation in exile, many young South
Africans, who fled the country after the Black Consciousness-inspired
uprising, joined the non-racial ANC whose influence and political
dominance grew. The political struggle in South Africa appeared to reach an
impasse in the 1980s as the UDF increasingly managed to make the country
ungovernable and as state repression increased through the application of
various States of Emergency.
But then, according to the Constitutional Court, our history suddenly
took a turn for the better. In the 1980s, it became manifest to most people
that our country was heading for disaster unless the conflict was
reversed.73 Thus, ‘remarkably’, the country’s political leaders ‘managed to
avoid a cataclysm by negotiating a largely peaceful transition from the
rigidly controlled minority regime to a wholly democratic constitutional
dispensation’.74 Tentative and highly secretive talks between members of
the ANC and the NP commenced in mid-1980. When FW de Klerk became
President in 1989, he was able to build on the previous secret negotiations
with the imprisoned Nelson Mandela. The first significant steps towards
formal negotiations took place in February 1990 with the unbanning of the
ANC and other banned organisations such as the PAC by State President
FW de Klerk, and the release of political leaders such as Nelson Mandela
from prison.75 Exiled leaders of the ANC and the PAC returned to South
Africa and eventually negotiations about the transition to democracy
commenced.

1.3.2 CODESA, the MPNF and the two-stage transition

The Congress for a Democratic South Africa (CODESA) was convened in
late 1991 and it was this body – comprising all the major political
formations in South Africa76 – which was tasked with the drafting of the
interim Constitution. CODESA was preceded by intense negotiations,
particularly between the NP and the ANC, to try to reach agreement on the
basic premises that would guide the negotiating process.
The Declaration of Intent signed when CODESA was set in motion on
21 December 1991 already recorded a common view that the new
constitution would ensure:77
a. that South Africa will be a united, democratic, non-
racial and non-sexist state in which sovereign
authority is exercised over the whole of its territory;
b. that the Constitution will be the supreme law and
that it will be guarded over by an independent, non-
racial and impartial judiciary;
c. that there will be a multi-party democracy with the
right to form and join political parties and with
regular elections on the basis of universal adult
suffrage on a common voters roll; in general the
basic electoral system shall be that of proportional
representation;
d. that there shall be a separation of powers between
the legislature, executive and judiciary with
appropriate checks and balances;
e. that the diversity of languages, cultures and religions
of the people of South Africa shall be acknowledged;
and
f. all shall enjoy universally accepted human rights,
freedoms and civil liberties including freedom of
religion, speech and assembly protected by an
entrenched and justiciable Bill of Rights and a legal
system that guarantees equality of all before the
law.78
However, negotiations stalled in June 1992 when the ANC walked out in
protest at the slow pace of progress and CODESA was eventually replaced
by the Multi-Party Negotiating Forum (MPNF).79 This body finally
adopted the interim Constitution in 1993 before it was ratified by the
apartheid Parliament.
The negotiating process was not without its difficulties as the major
political parties had very different visions about the transition to democracy.
On the one hand, the ANC was committed to the drafting of a constitution
by a democratically elected body and the formation of a majority
government. On the other hand, the NP favoured the drafting of a final
constitution by the unelected MPNF, followed by a long transitional
government with power shared among the most popular parties in a manner
that would effectively provide a veto for coalition parties. After many twists
and turns, the ANC and the NP managed to reach a compromise model for
the transition to democracy. While the ANC and the NP agreed that it
would be necessary to draft a constitution containing certain basic
provisions, those who negotiated this commitment were confronted,
however, with two problems. As the Constitutional Court explained:
The first arose from the fact that they were not elected to
their positions in consequence of any free and verifiable
elections and that it was therefore necessary to have this
commitment articulated in a final constitution adopted
by a credible body properly mandated to do so in
consequence of free and fair elections based on universal
adult suffrage. The second problem was the fear in some
quarters that the constitution eventually favoured by
such a body of elected representatives might not
sufficiently address the anxieties and the insecurities of
such constituencies and might therefore subvert the
objectives of a negotiated settlement. The government
and other minority groups were prepared to relinquish
power to the majority but were determined to have a
hand in drawing the framework for the future
governance of the country. The liberation movements on
the opposition side were equally adamant that only
democratically elected representatives of the people
could legitimately engage in forging a constitution:
neither they, and certainly not the government of the
 day, had any claim to the requisite mandate from the
electorate.80
The impasse was resolved by a compromise – typical of the constitution-
making process – which required a programmed two-stage transition from
the apartheid state to a democratic state instead of an outright transferral of
power from the old order to the new. In the first stage of the transition, the
unelected negotiating parties at the MPNF negotiated the interim
Constitution which was adopted by the apartheid Parliament in terms of the
1983 Constitution and which became binding immediately after the first
democratic election of April 1994.81
The interim Constitution provided for the establishment of an interim
government of national unity and the country was governed on a coalition
basis with both the ANC and the NP represented in the executive. This
coalition government was provided for in clauses in the interim
Constitution that allowed for a form of power sharing among the major
political parties for a minimum period of five years. In the second stage, a
Constitutional Assembly was then to draft a final constitution after the first
democratic election.82
Table 1.1 The two-stage constitution-making process

Interim Constitution Final Constitution

Negotiated before the first democratic Negotiated after the first democratic
election by unelected MPNF. election by the elected Constitutional
Assembly.

Contains power-sharing agreement Does not provide for any formal power-
allowing the ANC and the NP to share sharing agreement – after the 1999
power for five years and provides for two election the winner of the election governs
Deputy Presidents – one from the ANC the country on its own.
and one from the NP.

Contains 34 Constitutional Principles and Certified by the Constitutional Court as

provisions to regulate the adoption of a complying with 34 Constitutional
final constitution, including provisions for Principles after it was first rejected by that
the certification of the constitution by a Court and sent back to the Constitutional
newly created Constitutional Court. Assembly.
 Contains a Bill of Rights protecting all Contains an extensive Bill of Rights
basic human rights. protecting both civil and political as well as
social and economic rights.

Chapter 5 of the interim Constitution prescribed the basic framework and

rules for the drafting of the final Constitution. Section 68(1) provided that:
‘The National Assembly and the Senate, sitting jointly for the purposes of
this Chapter, shall be the Constitutional Assembly.’ In terms of
section 68(2), read with sections 68(3) and 73(1), the Constitutional
Assembly had to adopt a new constitutional text within two years of the
first sitting of the National Assembly. For such adoption, section 73(2)
required a majority of at least two-thirds of all the members of the
Constitutional Assembly. Section 71(2) then required that: ‘The new
constitutional text passed by the Constitutional Assembly, or any provision
thereof, shall not be of any force and effect unless the Constitutional Court
has certified that all the provisions of such text comply with the
Constitutional Principles referred to in subsection (1)(a) [Constitutional
Principles].’ 83
The Constitutional Principles, negotiated before the first democratic
election and thus included in the interim Constitution, contained wide-
ranging provisions. In addition, the relatively open-ended language afforded
considerable power to the Constitutional Court to interpret and apply these
provisions when it was called on to certify the final Constitution. The basic
structures and premises of a new constitutional text contemplated by the
Constitutional Principles were described as follows by the Constitutional
Court:
(a) a constitutional democracy based on the supremacy
of the Constitution protected by an independent
judiciary;
(b) a democratic system of government founded on
openness, accountability and equality, with universal
adult suffrage and regular elections;
(c) a separation of powers between the legislature,
executive and judiciary with appropriate checks and
 balances to ensure accountability, responsiveness and
openness;
(d) the need for other appropriate checks on
governmental power;
(e) enjoyment of all universally accepted fundamental
rights, freedoms and civil liberties protected by
justiciable provisions in the NT [final Constitution];
(f) one sovereign state structured at national, provincial
and local levels, each of such levels being allocated
appropriate and adequate powers to function
effectively;
(g) the recognition and protection of the status,
institution and role of traditional leadership;
(h) a legal system which ensures equality of all persons
before the law, which includes laws, programmes or
activities that have as their objective the
amelioration of the conditions of the disadvantaged,
including those disadvantaged on grounds of race,
colour or creed;
(i) representative government embracing multi-party
democracy, a common voters’ roll and, in general,
proportional representation;
(j) the protection of the NT against amendment save
through special processes;
(k) adequate provision for fiscal and financial
allocations to the provincial and local levels of
government from revenue collected nationally;
(l) the right of employers and employees to engage in
collective bargaining and the right of every person to
fair labour practices;
(m) a non-partisan public service broadly representative
of the South African community, serving all the
members of the public in a fair, unbiased and
impartial manner; and
(n) security forces required to perform their functions in
the national interest and prohibited from furthering
 or prejudicing party political interests.84
The interim Constitution determined that the decision of the Constitutional
Court certifying that the provisions of the new constitutional text complied
with the Constitutional Principles would be final and binding. It also
prohibited any other court of law from enquiring into or pronouncing on the
validity of the text.85 It is important to note that once the Constitutional
Court had certified the text of the final Constitution, compliance or non-
compliance of any aspect of the text with the Constitutional Principles
could never be raised in any court of law again. This means that the
Constitutional Principles, while of utmost importance in guiding the work
of the Constitutional Assembly and the process of certification by the
Constitutional Court, have played their role and cannot now be relied on by
any party who wishes to challenge an amendment to the Constitution.

COUNTER POINT

Was the constitution-making process

undemocratic?
The process which brought into being the 1996
Constitution has been criticised as being essentially
undemocratic. Botha summarises – without necessarily
endorsing – this argument as follows: 86
… the sovereignty of the people, in whose name the Constitution
was adopted, was systematically weakened by a two-stage process
that bound the people’s elected representatives to prior
agreements between political elites. As a result, it might be argued,
the voice of ‘the people’ was drowned out by the buzz of elite
bargaining, the noisy arguments of lawyers and the
pronouncements of judges. Sovereignty was splintered by a
political deal which fragmented the constitution-making process
and turned it into the preserve of lawyers, judges and technocrats.
Constituent power was effectively reduced to constituted power,
which had to comply not only with the procedural requirements
entrenched in the interim Constitution, but also had to heed the
‘solemn pact’ represented by the Constitutional Principles. The
 requirement of judicial certification of the constitutional text, which
is unprecedented in the history of constitutionalism, contributed
further to the weakening of popular sovereignty.

As we shall see, despite the constraints placed on the

Constitutional Assembly, it could be argued that the
provisions of the 1996 Constitution more or less reflected
the relative influence and power of the negotiating parties
in the Constitutional Assembly. As the ANC was by far the
strongest party in the Constitutional Assembly, the large
majority of provisions of the Constitution most closely
reflect its vision for a democratic society.

1.3.3 Drafting and adoption of the final 1996

Constitution
The 1994 election – in which the Inkatha Freedom Party (IFP) along with
all other major parties decided to take part after a last-minute deal –
delivered an overwhelming majority for the ANC. However, the ANC did
not gain the two-thirds majority required to write the Constitution without
the support of other political parties. Table 1.2 indicates the final election
results and the number of seats gained by each party in the National
Assembly.

Table 1.2 The final 1994 election results 87

Party Votes % Seats

African National Congress (ANC) 12 237 655 62,65 252

National Party (NP) 03 983 690 20,39 082

Inkatha Freedom Party (IP) 02 058 294 10,54 043

Freedom Front (FF) 0 0424 555 02,17 009

Democratic Party (DP)88 0 0338 426 01,73 007

Pan Africanist Congress (PAC) 0 0243 478 01,25 005

 African Christian Democratic Party (ACDP) 0 0088 104 00,45 002

Because the ANC did not obtain a two-thirds majority and because its
negotiators were inclined to seek consensus, it tried hard to gain the
necessary support for the various provisions from its long-standing
opposition in the negotiating process, the NP. An enormous public
participation programme and a programme of political discussions were
also launched to ensure popular participation in the negotiating process
which, it was believed, would lead to popular acceptance of the outcome
reached.89 Despite the Assembly’s commitment to transparency, meeting
away from the watchful eye of the press was probably essential to resolve
some of the most fundamental disagreements between the parties. Technical
legal advisers also played an important role in formulating alternative
options relating to some of the most controversial clauses.90 However, it is
widely accepted that the consensus, which ultimately emerged, favoured the
dominant party – the ANC.91
The interim Constitution contained several mechanisms to break any
deadlocks in the negotiations. A panel of constitutional experts, consisting
of lawyers, was empowered to advise the Assembly to try to resolve
deadlocks. The interim Constitution also provided that if a draft constitution
did not command two-thirds of the vote but did gain the support of the
majority of the members, it could nevertheless become the country’s
constitution if it was supported by 60% of the voters in a referendum.92
However, neither of the major parties was keen to resort to the referendum
option and eventually the Constitutional Assembly voted to pass the new
Constitution with only two no votes and 10 abstentions.93

COUNTER POINT

Was the public participation programme

influential in the constitution-making process?
In a submission to the Constitutional Assembly, Sampson
Moholoane – one of the more than two million South
 Africans who made submissions to the Constitutional
Assembly – wrote:
I want to stress one area which I believe as a citizen of South Africa
one should have access to at all times. That is a welfare
programme that will leave no South African from being able to
afford three square meals a day. It must be a citizen’s right to be
able to have shelter and food even when he is not working, even if
he is a destitute. The new Constitution must make this compulsory
…94

Some commentators argue that the public participation

programme run by the Constitutional Assembly was not
decisive in influencing the form and content of the
provisions of the final Constitution as these submissions
often contained vague wish lists concerned with problems
of poverty and a low standard of living. Others point to the
set of social and economic rights (discussed in chapter 16)
as proof that the process did play an important role in
giving voice to the aspirations of ordinary people in the
drafting of the Constitution.

After the Constitutional Assembly had adopted the final Constitution, the
document was submitted to the Constitutional Court for certification. All
political parties involved in the negotiations, except for the ANC and the
PAC, lodged objections to the text with the Constitutional Court. Because
the document had emerged through negotiations, many of these parties were
not happy with certain clauses in the draft text and challenged these
provisions in the hope that the Constitutional Court would refuse to certify
the text for failing to comply with the 34 Constitutional Principles.
The Constitutional Court saw its task as measuring the text of the final
Constitution against the Constitutional Principles to determine whether the
text complied with those principles. The Court held that the Constitutional
Principles had to be ‘applied purposively and teleologically to give
expression to the commitment “to create a new order” based on “a
sovereign and democratic constitutional state” in which “all citizens” are
“able to enjoy and exercise their fundamental rights and freedoms” ’.95 The
Principles therefore had to be interpreted holistically and in a manner that
was not too technically rigid.96 The Constitutional Court evaluated the text
of the final Constitution in two distinct ways. First, it asked whether the
basic structures and premises of the final constitutional text were in
accordance with those contemplated by the Constitutional Principles.
If such basic structures and premises do not comply with
what the [Constitutional Principles] contemplate in
respect of a new constitution, certification by this Court
would have to be withheld. If the basic structures and
premises of the [final Constitution] do indeed comply
with the [Constitutional Principles] then, and then only,
does the second question arise. Do the details of the [final
Constitution] comply with all the [Constitutional
Principles]? If the answer to the second question is in the
negative, certification by the Constitutional Court must
fail because the [final Constitution] cannot properly be
said to comply with the [Constitutional Principles].97

In Certification of the Constitution of the Republic of South Africa, 1996,98

the First Certification judgment, the Constitutional Court found that the text
did comply with the structural requirements. The Court then proceeded to
consider the details of the text and found that it was not compatible with the
Constitutional Principles on nine discrete grounds. It also set out in fairly
unambiguous terms the changes that were necessary if the constitution was
to meet the test of the Principles.99 This meant that the Constitutional
Assembly was found to have adopted an unconstitutional constitution and
that the Assembly had to amend the text to comply with the Constitutional
Court judgment. Although the constitution was therefore adopted by a
democratically elected body, the Constitutional Court had the final say on
whether the provisions agreed on by this body were compliant with the
Constitutional Principles negotiated by the unelected MPNF.
As soon as the Constitutional Court decision was handed down, the
Constitutional Assembly reassembled and amended the constitution as
required by the Constitutional Court judgment. The Constitutional Court
finally certified the amended draft of the constitution in Certification of the
Amended Text of the Constitution of the Republic of South Africa, 1996, the
Second Certification judgment, as being compliant with the
34 Constitutional Principles in December 1996.100 President Nelson
Mandela signed the final version of the 1996 Constitution on 10 December
1996 and it came into effect on 4 February 1997. It is this text – and its
subsequent amendments – which forms the subject of this book.

COUNTER POINT

The unique birth of the 1996 Constitution

Some commentators and politicians have argued that the
way in which South Africa’s final Constitution came into
existence was unique in the world. A newly created
Constitutional Court actually declared unconstitutional a
constitution drafted by a democratically elected
constitution-making body. However, so they argue, this
approach represented a wise compromise that helped to
allay the fears of the minority NP but that ultimately allowed
the dominant ANC to have a determinative influence on the
text finally agreed to and adopted. Perhaps, they say, the
text would not have looked so very different even if the
Constitutional Assembly had not been required to comply
with the 34 Constitutional Principles. This is because
neither the NP nor the ANC could muster the support of
two-thirds of the members of the National Assembly to
push through their own agendas and were therefore forced
to make compromises.

1.4 The South African Constitution of 1996

1.4.1 The transformative nature of the Constitution
Formally, the South African Constitution, adopted by the Constitutional
Assembly in 1996, creates a sovereign democratic state founded on the
values of human dignity and the advancement of equality, non-racialism
and non-sexism, the supremacy of the Constitution, the rule of law,
universal adult suffrage and a multiparty system of democracy in which free
and fair elections are held regularly.101 Unlike the Westminster-style
Constitutions of the colonial and apartheid eras, parliamentary sovereignty
has been replaced by constitutional sovereignty. This means the
Constitution is the supreme law of the Republic, law or conduct
inconsistent with it is invalid and the obligations imposed by it must be
fulfilled.102 It contains a detailed Bill of Rights that sets out a list of civil,
political, social and economic rights. The Bill of Rights also places both a
negative and a positive obligation on the state and – in some cases – a
further obligation on private individuals and institutions, to respect, protect,
promote and fulfil the rights in this Bill of Rights.103
The courts – with the Constitutional Court at the apex – are the
guardians of the Constitution in general and the Bill of Rights in particular.
They have the power to declare invalid any act or any legislation
inconsistent with it. To this end, the Constitution sets up three branches of
government (the legislature, the executive and the judiciary) and a system
of separation of powers between the three branches. It also guarantees the
independence of the judicial branch in relation to the other two branches to
allow the judiciary to interpret and enforce the law and the provisions of the
Constitution without fear, favour or prejudice.
The Constitution is avowedly a democratic one, guaranteeing the right
to make political choices. This includes the specific rights to form a
political party, to participate in the activities of that party and to campaign
for a party or cause. Moreover, citizens have the right to free, fair and
regular elections for any legislative body, as well as the right to stand for
and hold public office and vote in those elections.
The Constitution also recognises the institution, status and role of
traditional leadership according to customary law. It makes provision for
the functioning of a traditional authority that observes a system of
customary law, subject to any applicable legislation and customs. The
Constitution also enjoins courts to apply customary law when that law is
applicable, but always subject to the Constitution and any legislation that
specifically deals with customary law.104 In addition, the Constitution
provides authority for various legislatures to adopt legislation that provides
for a role for traditional leadership as an institution at local level on matters
affecting local communities. To deal with matters relating to traditional
leadership, the role of traditional leaders, customary law and the customs of
communities observing a system of customary law, national or provincial
legislation may provide for the establishment of houses of traditional
leaders and national legislation may establish a council of traditional
leaders.105
We will discuss these technical aspects of the Constitution in detail in
subsequent chapters of this book. However, it is important to note that we
must also view the Constitution of 1996 through a less formalistic lens to
capture the unique nature of the document and to come to grips with the
manner in which the Constitutional Court has interpreted its provisions. In
particular, we must be alert to the fact that the Constitution was written in
response to the social, economic and political history of South Africa and is
often described as a transformative Constitution,106 a document committed
to social, political, legal and economic transformation.
In fact, the transformative nature of the South African Constitution has
been confirmed in several judgments of the Constitutional Court.107 But
what does this mean in practice? The Constitution is said to have set itself
the mission of assisting with the transformation of society in the public and
private spheres. It rejects ‘that part of the past which is disgracefully racist,
authoritarian, insular, and repressive’ and facilitates a move towards a more
democratic, universalistic, caring and aspirationally egalitarian society.108
South African constitutionalism thus attempts to transform our society from
one deeply divided by the legacy of a racist and unequal past into one based
on democracy, social justice, equality, dignity and freedom.109
Exactly how the end product of this metamorphosis should look and
when, if ever, it will be achieved must necessarily remain uncertain and
dependent on the outcomes of this continuous interaction. However, the
outcome should simultaneously not be conceived as so vague as to preclude
meaningful and deliberate participation in the process. Traditional liberal
constitutions are said to authorise, regulate and check the exercise of public
power, but supposedly allow voters and politicians to decide in which
direction a society will move and at what pace that movement will occur.
By contrast, the South African Constitution is said to contain a commitment
to creating a society that will look fundamentally different from the one that
existed at the time when the Constitution was being drafted. When
interpreting the text of the Constitution, it is therefore necessary to look
both backward and forward. We need to look backward at the history of
South Africa and to ask what negative aspects of our past this document
aimed to address and to transform, to what extent the transformation was
required and at what pace. At the same time, the Constitution also signals a
tentativeness, suggesting that it is a permanent work-in-progress, always
looking forward, always subject to revision and improvement to try to
achieve the society it envisages.110
This vision of the transformative nature of the Constitution is at least
partly derived from the text of the Constitution itself. The text
acknowledges that the new dispensation arose in a particular historical
context and requires an acknowledgement of the effects of past and ongoing
injustice. The notion that the Constitution is a transformative document is
also captured by referring to it as a post-liberal document. This is so
because while the Constitution contains many provisions that mirror
provisions in other constitutions in liberal democracies (such as the US
Constitution), it also departs from liberalism as it envisages a move towards
an ‘empowered’ model of democracy.111 The transformative or post-liberal
nature of the South African Constitution manifests with reference to several
unique characteristics of the document which were first highlighted by
Klare: it is social, redistributive, caring, positive, at least partly horizontal,
participatory, multicultural and self-conscious about its historical setting
and transformative role and mission:112
• Social rights and a substantive concept of equality: The Constitution
endorses the view that political freedom and socio-economic justice are
inextricably linked. There is therefore a close connection between
political rights, such as freedom of expression and the right to vote, and
 socio-economic rights such as the right to housing and health care.
Democracy and the democratic rights that make democracy possible only
have meaning if they lead to the creation of a new kind of society in
which people actually have the social resources they need to exercise
their rights meaningfully. The chief purpose of classical liberal bills of
rights is to ensure that the government of the day does not interfere with
the liberty of individuals and the property rights of the middle classes.
By contrast, the South African Constitution embodies the idea that the
power of the community can (and must) be deployed to achieve goals
consistent with freedom. This is why the Constitution contains a
pervasive and overriding commitment to the achievement of substantive
(redistributive) equality.
• Affirmative state duties: A traditional liberal bill of rights places only
negative restraints on a government to stop it from interfering with the
liberty of individuals. By contrast, the South African Bill of Rights, in
addition to negative restraints, also imposes positive or affirmative duties
on the state to combat poverty and promote social welfare, to assist
people in authentically exercising and enjoying their constitutional
rights, and to facilitate and support individual self-realisation.113 For
example, the Bill of Rights places a positive duty on the state to take
reasonable steps progressively to ensure access to socio-economic
welfare in areas such as housing, health care, food, water, social security
and the protection of children.114
• Horizontality: Traditional bills of rights in liberal constitutions are said
to be concerned with the vertical relationship between citizens and the
state, limiting the power of the state to interfere in the lives of
individuals or private institutions. However, the South African Bill of
Rights has an explicit horizontal application. This means that in certain
cases the Bill of Rights does not only limit the power of the state to
interfere in the lives of individuals or citizens, but also binds individuals
and institutions and, in some cases, requires them to respect the rights of
others. Thus section 8(2) states that the Bill of Rights binds private
parties in certain cases. Private parties are expressly barred from
engaging in invidious discrimination and government is obliged to enact
legislation enforcing that command.115 Moreover, section 39(2) requires
 courts to take into account the spirit, purport and objects of the Bill of
Rights when they interpret and develop the common law and customary
law which, to a large degree, regulate private relationships.
• Participatory governance: As we shall see, the nature of the democracy
established by the Constitution focuses on the participation of citizens at
all levels and at all stages of decision making. The Constitution
envisages inclusive, accountable, participatory, decentralised and
transparent institutions of governance and contemplates that government
will actively promote and deepen a culture of democracy.116
• Multiculturalism: South Africa is a multicultural society and it is said
that the Constitution celebrates multiculturalism and diversity within a
framework of national reconciliation and ubuntu.117 It expressly
promotes gender justice and rights for vulnerable and victimised groups
and identities, explicitly including protections for gay men, lesbians and
the disabled. It also protects language diversity and respect for cultural
tradition and diversity and the ‘right to be different’.118
• Historical self-consciousness: The Constitution is said to reject the
notion of a constitution as a social contract entered into by citizens,
presenting a snapshot of that society at the time of its conclusion and
requiring the protection of the status quo at the time of its adoption.
Unlike traditional liberal constitutions, it is said to reject the notion that
its aim is to protect the pre-existing hierarchy and distribution of social
and economic power. It accepts that legal and political institutions are
chosen, not given, that democracy must be periodically reinvented, and
that the Constitution itself must constantly be interpreted and
reinterpreted to reflect the evolving understanding of the needs and
problems a society faces. The 1996 text also contains numerous passages
acknowledging that constitutional provisions are not self-executing, but
are evolving texts that must be interpreted and applied.119

PAUSE FOR REFLECTION

The need for a transformative Constitution

 Generations of children born and yet to be born will suffer the
consequences of poverty, of malnutrition, of homelessness, of
illiteracy and disempowerment generated and sustained by the
institutions of apartheid and its manifest effects on life and living
for so many. … It will take many years of strong commitment,
sensitivity and labour to ‘reconstruct our society’ so as to fulfil the
legitimate dreams of new generations exposed to real opportunities
for advancement denied to preceding generations initially by the
execution of apartheid itself and for a long time after its formal
demise, by its relentless consequences.120

1.4.2 Interpretation of the South African Constitution

When interpreting the Constitution, the starting point will always be the text
of the relevant provisions in the Constitution. However, we should not read
these provisions in isolation; instead we should assume that the various
provisions of the text are in harmony with one another and we should read
it holistically. The specific textual provisions alone will not always provide
a clear and definitive answer as to their meaning. Courts are required to
interpret and apply these provisions and, through this interpretation, the
meaning of the Constitution will evolve over time.
A fundamental question arises regarding the power of judges to interpret
the text and to what extent contextual factors as well as the normative
commitment of judges may and should play a role in the interpretative
exercise. On the one hand, many of the justices of the Constitutional Court
have tentatively acknowledged the open-ended nature of the language of the
Constitution and the inherent need to refer to extra-legal values and texts,
including the South African political context and history, to justify their
decisions.121 On the other hand, some judges have warned that it is not
permissible to revert to general philosophical or moral values to try to flesh
out their understanding of the constitutional text.122
The Constitutional Court has since often declared its commitment to the
centrality of the constitutional text in constitutional interpretation. However,
the Court has also acknowledged that any such interpretation can only be
conducted with the assistance of objective or objectively determinable
criteria, or, at the very least, with reference to criteria that are somehow
distanced from the personal views, opinions and political philosophy of the
presiding judge.123 The criteria the Constitutional Court employs to do the
work in the interpretation of the constitutional text have varied. The Court
has resorted to an array of traditional devices such as references to common
law, its own precedent established in previous judgments, the history of the
drafting of the Constitution, international law or foreign case law, and
canons of constitutional interpretation. At times, the Court has also resorted
to less traditional factors such as the surrounding circumstances of a case,
the social context of a case, the economic, political and social environment
in South Africa (including the continued existence of vast inequalities
between the rich and the poor) or the general history out of which the
Constitution was born.

PAUSE FOR REFLECTION

The interpretative approach of the Constitutional

Court
In S v Makwanyane and Another, Mahomed DP
summarised the approach of the Constitutional Court to the
interpretation of the Constitution as follows:
What the Constitutional Court is required to do in order to resolve
an issue, is to examine the relevant provisions of the Constitution,
their text and their context; the interplay between the different
provisions; legal precedent relevant to the resolution of the
problem both in South Africa and abroad; the domestic common
law and public international law impacting on its possible solution;
factual and historical considerations bearing on the problem; the
significance and meaning of the language used in the relevant
provisions; the content and the sweep of the ethos expressed in
the structure of the Constitution; the balance to be struck between
different and sometimes potentially conflicting considerations
reflected in its text; and by a judicious interpretation and
assessment of all these factors to determine what the Constitution
permits and what it prohibits.124
It will be difficult to claim that the Constitutional Court has systematically
developed a clear and unambiguous approach to the interpretation of the
Constitution in general or even of the provisions of the Bill of Rights more
specifically. Nevertheless, it is safe to say that apart from its use of
traditional methods of interpretation to signal the ‘legal’ (as opposed to
‘political’) nature of its task, the Court has also developed what can loosely
be termed a ‘contextual’ or ‘teleological’ approach to constitutional
interpretation. In applying its contextual approach, the Court has often
found guidance in the more recent decisions of the Canadian Supreme
Court.125 In line with Canadian Supreme Court jurisprudence, the Court
has often referred to the historical context in which the Constitution was
adopted. Of course, it cannot be said that the Court always uses a contextual
approach, or that it always uses it in the same manner, or even that the
different judges understand and apply this approach in the same way. Yet, in
case after case, the various judges of the Court have carefully sketched the
political and social context within which the Constitution operates before
proceeding to give an interpretation of the relevant provision of the
Constitution.
The contextual approach to constitutional interpretation purportedly
employed by the Court is a complex and multifaceted endeavour.126
Essentially, the Court has embraced the idea that textual provisions can only
be understood with reference to the historical and political context in which
the interpretation takes place. When interpreting the Constitution it is
important to keep in mind what the Constitution aimed to achieve. To do so,
we need to recall South Africa’s unique history and understand that the
Constitution was drafted at least in part to ensure that the horrors of the
apartheid past are never repeated.

PAUSE FOR REFLECTION

A grand narrative acts as an interpretative tool

It has been argued that the Constitutional Court attempts to
use South Africa’s history as a ‘grand narrative’ – a
meaning-giving story – to justify its interpretations and to
 avoid allegations that it interprets the Constitution based on
‘political’ rather than on ‘legal’ considerations:
While many of the provisions in the constitutional text do not have
one objective meaning, and while the meaning of a text (often)
depends on the context in which it is being interpreted, the grand
narrative provides exactly such a context (or at least the major
tenets of such a context). This context seemingly enables lawyers,
legal academics and judges to interpret the Constitution without
recourse to their own social, moral and political opinions. This
strategy holds the promise of allowing the court to move away from
the traditional liberal or modernist view of legal texts as holding
one distinct and fixed meaning – a view that has become
unsustainable in the age of constitutional interpretation – without
doing away with the distinction between law on the one hand and
politics on the other. The text of the Constitution may not always
have one objective meaning, so it is said, but if we read it in the
context of our history it will pretty much tell us what we want to
know without us having to have recourse to our own personal,
political or philosophical views. I therefore contend that the grand
narrative acts as an interpretive tool, a tool deployed with the aim
of safeguarding the legitimacy of the process of constitutional
review and interpretation itself.127

Of course, South Africa’s history may well be a useful

reference point for understanding the various provisions in
the Constitution. If we assume that the Constitution was
drafted to ensure that no government would ever again act
in a way that fundamentally breached the rights of citizens
and to prevent a recurrence of the injustices of the past, we
may well argue that our history can teach us much about
the purpose of the various constitutional provisions
included in the Constitution.

However, the context in which the Constitution needs to be interpreted also

includes the political, economic and social context. The nature of the South
African democracy, as well as the lingering effects of the system of racial
discrimination and minority rule, may well inform the way in which courts
interpret the constitutional text.
1.4.3 Context: an inegalitarian society and a one-party
dominant democracy
The South African Constitution does not operate in a political or economic
vacuum. South Africa is an inegalitarian society with vast discrepancies in
wealth between rich and poor citizens. These factors must play a role when
interpreting the provisions of the South African Constitution. As the
Constitutional Court pointed out:
We live in a society in which there are great disparities in
wealth. Millions of people are living in deplorable
conditions and in great poverty. There is a high level of
unemployment, inadequate social security, and many do
not have access to clean water or to adequate health
services. These conditions already existed when the
Constitution was adopted and a commitment to address
them, and to transform our society into one in which
there will be human dignity, freedom and equality, lies at
the heart of our new constitutional order. For as long as
these conditions continue to exist that aspiration will
have a hollow ring. The constitutional commitment to
address these conditions is expressed in the preamble
which, after giving recognition to the injustices of the
past, states: ‘We therefore, through our freely elected
representatives, adopt this Constitution as the supreme
law of the Republic so as to – Heal the divisions of the
past and establish a society based on democratic values,
social justice and fundamental human rights; Improve
the quality of life of all citizens and free the potential of
each person.’ 128
This passage underlines the transformative nature of the Constitution. The
Constitution aims to address the unequal nature of South African society
and imposes an obligation on the state and other relevant actors to address
the needs of the most vulnerable and marginalised members of society.
When interpreting the provisions of the Constitution – especially the
provisions of the Bill of Rights – the Constitutional Court has signalled an
acute awareness of the unequal and unjust nature of South African society
and the vulnerability of many groups who lack economic or political power
and who require protection or advancement from the legislature and the
executive as well as the judiciary.
However, the political culture and the nature of the South African
democracy must also play a role in interpreting the provisions of the
Constitution. It finds application and must be interpreted by the courts with
reference to the specific nature of South Africa’s political culture and the
role that political parties play in the political system. Political parties play a
decisive role in the South African system of government, first, because of
the nature of the electoral system currently in operation in South Africa and,
second, because of the dominant position of former liberation movements in
current politics. It would be impossible to come to grips with the manner in
which the various provisions of the Constitution operate without
understanding – in broad terms – the South African political landscape. As
we have seen, the ANC overwhelmingly won the first national democratic
election in 1994. The ANC has won every national election ever since. In
1999 it increased its support to 66,3% of the total vote and in 2004 this
further increased to 69,7% of the vote. Its closest competitor has been the
DA which won only 9,56% of the vote in 1999 and 12,37 in 2004. Table 1.3
illustrates the standing of parties in 2009.

Table 1.3 The 2009 election results 129

Party Votes % +/− Seats130

African National Congress

11 650 748 65,90 −3,80 264
(ANC)

Democratic Alliance (DA) 02 945 829 16,66 +4,29 067

Congress of the People

01 311 027 07,42 +7,42 030
(CoP)

Inkatha Freedom Party (IFP) 0 0804 260 04,55 −2,42 018

Independent Democrats (ID) 0 0162 915 00,92 −0,81 004

United Democratic Movement 0 0149 680 00,85 −1,43 004

(UDM)
 Freedom Front Plus (FFP) 0 0146 796 00,83 −0,06 004

African Christian Democratic

0 0142 658 00,81 −0,80 003
Party (ACDP)

United Christian Democratic

0 0066 086 00,37 −0,38 002
Party (UCDP)

Pan Africanist Congress

0 0048,530 00,27 −0,45 001
(PAC)

Minority Front (MF) 0 0043 474 00,25 −0,11 001

Azanian People’s
0 0038 245 00,22 −0,03 001
Organisation (AZAPO)

African People’s Convention

0 0035 867 00,20 +0,20 001
(APC)

It is therefore clear that since 1994, one party, the ANC, has enjoyed
electoral dominance and continues to win free and fair elections with all
other parties lagging far behind. Such a system in which one political party
continuously wins overwhelming electoral victories in free and fair
elections is often referred to as a dominant party democracy.131
Although this description is disputed as far as South Africa is concerned, it
is important to note that the electoral dominance of one political party has
the potential to influence the manner in which various constitutional
structures in a democracy operate.
Advocates of the dominant party thesis have described a number of
consequences flowing from the continued electoral dominance of one
political party. They argue that the dominant status of one political party in
a democracy has the tendency to erode the checks on the power of the
executive created by a democratic but supreme Constitution. Legislative
oversight over the executive in Parliament may be stymied and opposition
parties may be marginalised where one political party dominates the
legislature. There is also a danger that a dominant party may ‘capture’
various independent institutions – including the judiciary and other bodies
such as the prosecuting authority, the police service and other corruption-
busting bodies – by deploying its members to these institutions to remove
effective checks on the exercise of power by the government. In a one-party
dominant democracy, so they argue, the formal mechanisms through which
power is exercised become hollowed out while the separation between the
political party and the state breaks down. This essentially shifts the centre
where real decisions are made from the formal constitutional structures –
the Presidency and the Cabinet on the one hand and the legislature on the
other – to the decision-making body of the governing party.
In such a system, they argue, the leadership of the dominant party makes
all important decisions which are then merely formally endorsed by the
constitutional structures. This process is characterised by a blurring of the
boundary between party and state. This has the effect of reducing the likely
formation of independent groups from within civil society that are
autonomous from the ruling party. It is also characterised by a growing
preponderance of political power, leading to abuse of office and arbitrary
decision making. This undermines the integrity of democratic institutions,
particularly that of the legislature and its ability to check the executive. If
this is true, it will influence the manner in which the legislature, the
executive, the judiciary and other constitutional institutions operate as the
dominant party will have a disproportionate influence on these institutions,
thus posing difficulties for their effective operation.
Whether the electoral dominance of the ANC has turned South Africa
into a one-party dominant democracy is a hotly contested issue. Critics of
this thesis argue that there are external checks that operate outside the
constitutional system on the ANC which serve as functional substitutes for
the internal check provided by the formal institutions of parliamentary
democracy that the ANC’s dominance has eroded. Because of the fact that
the ANC is a ‘broad church’, so the argument goes, and because there is a
high degree of internal democracy in the ANC, this provides not merely
opportunities for debate, but for the reversal of official policy.132 The ANC
is also in an alliance with the SACP and the trade union federation
COSATU, both with their own membership and views. These alliance
partners play an important role in keeping the leadership of the ANC in
check and ensuring that the government of the day addresses the needs of
the majority of its citizens.
 In the chapters that follow, we will discuss the formal provisions of the
Constitution that set up various institutions and structures and that regulate
the governance of the country. When evaluating these institutions and
structures and when determining how well these structures operate in
practice, it is important to keep in mind arguments about the one-party
dominant nature of the constitutional democracy in South Africa. The view
we take about this issue will influence the judgment we make about how
effective and successful the structures set up by the Constitution function in
reality and interact with one another as required by the Constitution. Those
who believe that South Africa is indeed a one-party dominant democracy
will have a more negative assessment of the way in which the Constitution
succeeds in establishing a fully functioning multiparty democracy in which
the will of the people guides the governance of the country. They will argue
that the legislature does not always hold the executive accountable, will
worry about the ‘capture’ of the judiciary and whether it remains
independent, and will warn against the abuse of power by the executive.
Those who reject the one-party dominant thesis will argue that the
constitutional structures, on the whole, work well, that the executive
remains accountable to the legislature and that the independent judiciary
acts as a bulwark against abuse of power by state officials and elected
representatives of the people.

SUMMARY

South Africa’s constitutional history before 1994 was characterised by

extreme forms of racial segregation and discrimination, creating a
bifurcated state with one system with its own structures and sets of rules
applying largely to white settlers and other structures with their own sets of
rules applying to indigenous peoples. This essentially racial division is also
to be found in the law that is applicable in South Africa even today. The
common law, introduced by the colonial rulers, at first largely applied to the
white population while customary law developed by indigenous peoples
applied to black South Africans. Today, the common law and customary
law both apply to different people in different contexts.
 In 1910, the Union of South Africa formalised the bifurcated nature of
the state by establishing a Westminster system of government that largely
applied to the white population while allowing traditional governance
structures centred around chiefs to continue to operate for indigenous South
Africans but under the control of the white government. The Westminster
system established an extreme form of parliamentary sovereignty in which
Parliament was supreme and could make any law it wished as long as it
followed the correct procedure. This changed in 1994 with the transition to
democracy.
The transition to democracy occurred in two stages: the first transitional
stage was guided by an interim Constitution which allowed for power
sharing between the major political parties for a period of five years and
also contained 34 Constitutional Principles which would bind the drafters of
the final Constitution. The interim Constitution also prescribed the manner
in which the final Constitution had to be adopted. The final Constitution
was drafted by the Constitutional Assembly, comprising the democratically
elected National Assembly and the indirectly elected Senate, but this body
was bound by the 34 Principles. The Constitutional Court had to certify that
the final Constitution complied with these principles, which it eventually
did after first referring the Constitution back to the Constitutional Assembly
because it had not complied in all aspects with these Principles.
The final Constitution is said to be a transformative Constitution. This
means it responds to the social and economic history of our country. It aims
to facilitate the transformation of our society away from an unequal and
uncaring society in which racial discrimination and the marginalisation of
women and other vulnerable groups was the order of the day and vast
inequalities remained towards a fairer and more equal society in which the
human dignity of all is respected and protected. This Constitution often
contains vague provisions that judges must interpret. Judges use a purposive
method of interpretation and often refer to South Africa’s history to guide
them in their interpretative task.

1 Not all constitutions can be found in one or more formal written documents. For example, the
British or Westminster Constitution has evolved over a long period of time but has never been
 fully codified in any written official form. See De Smith, S and Brazier, R (1994)
Constitutional and Administrative Law 7th ed 6.
2 (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568;
[1996] 2 CHRLD 244 (5 April 1995) para 17.
3 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and the
African National Congress in a dominant party democracy Constitutional Court Review 2:1–
86.
4 See Currie, I and De Waal, J (eds) (2001) The New Constitutional and Administrative Law,
Vol 1 Constitutional Law 40–3.
5 See Kuper, A (1997) Review: The Mfecane Aftermath: Reconstructive Debates in Southern
African History by Carol Hamilton Current Anthropology 38(3):471–3; Woolman, S and
Swanepoel, J ‘Constitutional history’ in Woolman, S and Bishop, M (eds) (2013)
Constitutional Law of South Africa 2nd ed rev service 5 2.6.
6 Currie and De Waal (2001) 42; Dugard, J (1978) Human Rights and the South African Legal
Order 17. See generally Klug, H (2010) The Constitution of South Africa: A Contextual
Analysis 8–11.
7 Currie and De Waal (2001) 42.
8 Dugard (1978) 14–18.
9 Hahlo, HR and Khan, E (1960) The Union of South Africa: The Development of its Laws and
Constitution 72–83. See generally Carpenter, G (1987) Introduction to South African
Constitutional Law 64–72.
10 In Cassim and Solomon v The State (1892) Cape Law Journal 9:58, the High Court of the
Orange Free State reviewed a law which prohibited ‘Asians’ from settling in the state without
permission of the President on the ground that it violated the guarantee of equality before the
law. However, the Court upheld the law, arguing that the constitutional guarantee had to be
‘read in accordance with the mores of the Voortrekkers’. See Dugard (1978) 19.
11 Klug (2010) 11.
12 Dugard (1978) 20.
13 Brown v Leyds NO (1897) 4 Off Rep 17.
14 Dugard (1978) 24.
15 Bennett, TW (2004) Customary Law in South Africa 103.
16 Bennett (2004) 104.
17 Bennett (2004) 104–5.
18 Deflem, M (1999) Warfare, political leadership, and state formation: The case of the Zulu
Kingdom, 1808–1879 Ethnology 38(4):371–91 at 376–7.
19 Deflem (1999) 377–8.
20 Act 25 of 1894.
21 Davenport, TRH (1987) South Africa: A Modern History 3rd ed 181.
22 Hendricks, F and Ntsebeza, L (1999) Chiefs and rural local government in post-apartheid
South Africa African Journal of Political Science 4(1):99–126 at 102.
23 Davenport (1987) 152.
24 Woolman and Swanepoel (2013) 2.14.
25 Klug (2010) 8; Davenport (1987) 112–15; Mamdani, M (1996) Citizen and Subject:
Contemporary Africa and the Legacy of Late Colonialism 67–9.
26 In the Cape Colony, every man over the age of 21 who was a British subject and who owned
property worth at least 25 pounds or who received a salary of at least 50 pounds per year was
granted the vote. Although few black men qualified, there was no formal racial restriction in
the Cape franchise and this was retained after unification. Similar provisions applied to the
 Natal Colony. However, black men and women in the other two provinces were not allowed to
vote.
27 Chanock, M (2001) The Making of South African Legal Culture 1902–1936: Fear, Favour and
Prejudice 22.
28 Klug (2010) 9.
29 See, for example, Basson, DA and Viljoen, HP (1988) Suid-Afrikaanse Staatsreg 2de uitg 36–
7.
30 Currie and De Waal (2001) 44–5.
31 S 35 of the Union Constitution.
32 S 137 of the Union Constitution.
33 See Currie and De Waal (2001) 44–5.
34 Native Representative Act 12 of 1936. The Act was challenged in Ndlwana v Hofmeyer NO
and Others 1937 AD 229, but the courts refused to intervene.
35 Act 46 of 1951.
36 1952 (2) SA 428 (A).
37 1957 (1) SA 552 (A).
38 The only judge to dissent, Oliver Schreiner, was later twice overlooked when a new Chief
Justice had to be appointed. See Dugard (1978) 286; Haynie, SL (2003) Judging in Black and
White: Decision Making in the South African Appellate Division, 1950–1990.
39 Act 1 of 1958.
40 Klug (2010) 12.
41 Dugard (1978) 36. Dugard contrasts this extreme notion of parliamentary supremacy to that
which holds sway in the United Kingdom where political traditions, conventions and respect
for the rule of law act as a control on the system of parliamentary supremacy.
42 1934 AD 11.
43 S 1(12) of the Riotous Assemblies and Criminal Law Amendment Act 27 of 1914 as amended
by the Riotous Assemblies Amendment Act 19 of 1930.
44 Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11 paras 36–7.
45 Act 38 of 1927.
46 S 12.
47 S 1. See Mqeke, RB (1997) Basic Approaches to Problem Solving in Customary Law: A Study
of Conciliation and Consensus amongst the Cape Nguni 83–4.
48 Hendricks and Ntsebeza (1999) 104. See also Lacey, M (1981) Working for Boroko: The
Origins of a Coercive Labour System in South Africa 94–119.
49 Hendricks and Ntsebeza (1999) 104.
50 Act 68 of 1951.
51 The Promotion of Bantu Self-government Act 46 of 1959.
52 Transkei in 1976, Bophuthatswana in 1976, Venda in 1979 and Ciskei in 1981.
53 Bennett (2004) 111.
54 Hendricks and Ntsebeza (1999) 106.
55 There is one exception, the Balobedu tribe. See further Pieterse, M (1999) Traditional leaders
win battle in undecided war SAJHR 15:179–187; Motshabi, KB and Volks, SG (1991) Towards
democratic chieftaincy: Principles and procedures Acta Juridica 104–15 at 104–5.
56 For a discussion of the controversial nature of chieftaincy, see Bennett (2004) 111–13 and 120–
3; Pillay, N and Prinsloo, C (1995) The changing face of ‘traditional courts’ De Jure 1:383 at
383–4.
57 See Woolman and Swanepoel (2013) 2.21–2.22.
58 Republic of South Africa Constitution Act 110 of 1983.
59 S 14 of the 1983 Constitution. See Basson and Viljoen (1988) 152.
60 S 15 of the 1983 Constitution.
61 S 16 of the 1983 Constitution.
62 Klug (2010) 13. See generally Pottinger, B (1988) The Imperial Presidency: P.W. Botha, the
First 10 Years.
63 For example, the State President was elected by an 88-member electoral college, 50 of whom
were from the white House, 25 from the coloured House and 13 from the Indian House. These
delegates were elected by each House with a simple majority, thus ensuring that the majority
party in the white House would retain overall control over the election of the President.
64 Klug (2010) 13. See also Currie and De Waal (2001) 56–7 and Basson and Viljoen (1988) 50–
1.
65 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 5,
quoting from the postamble to the 1993 Constitution.
66 First Certification para 9.
67 The notion of a Charter was first mooted at the annual Congress of the ANC in August 1953.
Prof ZK Mathews formally suggested convening a Congress of the People (COP) to draw up
the Freedom Charter. The idea was adopted by the allies of the ANC, the South African Indian
Congress, the South African Coloured People’s Organisation and the South African Congress
of Democrats.
68 Woolman and Swanepoel (2013) 2.28.
69 Woolman and Swanepoel (2013) 2.26.
70 Act 37 of 1963.
71 Woolman and Swanepoel (2013) 2.26.
72 Biko, S (1978) I Write What I like 45–53.
73 Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South
Africa and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672
(25 July 1996) para 2.
74 First Certification para 10.
75 Sparks, AH (1994) Tomorrow is Another Country: The Inside Story of South Africa’s
Revolution.
76 By the time the interim Constitution was finalised, the Inkatha Freedom Party (IFP) and its
allies in the Freedom Alliance (consisting of various Bantustan governments and pro-apartheid
white parties) had walked out of the negotiations.
77 See Venter, F (2010) Liberal democracy: The unintended consequence – South African
constitution-writing propelled by the winds of globalisation SAJHR 26(1):45–65 at 53. Venter
notes that this wording was developed by a working group of the Steering Committee
established by the 19 participating parties that committed themselves to CODESA in the course
of November and December 1991. It was partly foreshadowed in chapter 1 of the National
Peace Accord signed on 14 September 1991 by some 40 parties and organisations.
78 Available at http://www.anc.org.za/show.php?id=3968&t=Transition.
79 The MPNF emerged after intense negotiation which led to the Record of Understanding signed
on 26 September 1992 and which is available at http://www.anc.org.za/show.php?id=4206.
80 First Certification para 12.
81 Murray, C (2001) A constitutional beginning: Making South Africa’s final Constitution
University of Arkansas at Little Rock Law Review 23:809–38 at 813.
82 The procedure for the adoption of the final Constitution was laid down in ss 68–73 of the
Constitution of the Republic of South Africa Act 200 of 1993.
83 See also First Certification paras 16–19.
84 First Certification para 45.
85 S 71(3) of the interim Constitution.
86 Botha, H (2010) Instituting public freedom or extinguishing constituent power? Reflections on
South Africa’s constitution-making experiment SAJHR 26(1):66–84 at 69–70.
87 See Elections in post-apartheid South Africa SA History Online available at
http://www.sahistory.org.za/elections-post-apartheid-south-africa.
88 The Democratic Party is the forerunner of the Democratic Alliance, that was formed when the
DP merged with the NP.
89 Murray (2001) 816. The Constitutional Assembly’s slogan, ‘You’ve made your mark now have
your say’, invited the many millions of South Africans who had voted for the first time in 1994
to contribute to the country’s first democratic Constitution – and over two million did so. See
generally Ebrahim, H (1998) The Soul of a Nation: Constitution-making in South Africa.
90 See ss 72–3 of the interim Constitution. A panel of constitutional experts comprising two
practising lawyers and five academic lawyers was to review the final Constitution. The panel
had a month to come up with ‘deadlock-breaking’ ideas.
91 Woolman and Swanepoel (2013) 2.41.
92 See s 73(8) of the interim Constitution.
93 Murray (2001) 832.
94 As quoted in Murray (2001) 821. This particular submission was dated 16 May 1995.
95 First Certification para 34.
96 First Certification paras 36–7.
97 First Certification para 44.
98 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996).
99 See First Certification para 482.
100 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996).
101 S 1.
102 S 2.
103 S 7(2).
104 S 211.
105 S 212 of the Constitution.
106 See Klare, K (1998) Legal culture and transformative constitutionalism SAJHR 14(1):146–88;
Chaskalson, A (2000) The third Bram Fischer lecture: Human dignity as a foundational value
of our constitutional order SAJHR 16(2):193–205 at 199; Pieterse, M (2005) What do we mean
when we talk about transformative constitutionalism? SA Public Law 20:155–66; Langa, P
(2006) Transformative constitutionalism SLR 17(3):351–60; Moseneke, D (2009)
Transformative constitutionalism: Its implications for the law of contract SLR 20(1):3–13 at 4;
Davis, DM and Klare, K (2010) Transformative constitutionalism and the common and
customary law SAJHR 26(3):403–509.
107 Mkontwana v Nelson Mandela Metropolitan Municipality (CCT 57/03) [2004] ZACC 9; 2005
(1) SA 530 (CC); 2005 (2) BCLR 150 (CC) (6 October 2004) para 81; Soobramoney v Minister
of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12)
BCLR 1696 (27 November 1997) para 8; Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000
(10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000) para 21.
108 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA
391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 262.
109 See Davis, D (1999) Democracy and Deliberation: Transformation and the South African
Legal Order 44.
110 See ss 1 and 7 of the Constitution. The Constitution’s historically situated character has been
recognised in several Constitutional Court judgments. See, for example, AZAPO para 50:
‘constitutional journey from the shame of the past to the promise of the future’; para 42:
‘[w]hat the Constitution seeks to do is to facilitate the transition to a new democratic order’.
See also De Vos, P (2001) A bridge too far? History as context in the interpretation of the
South African Constitution SAJHR 17(1):1–33.
111 Klare (1998) 152.
112 See generally Klare (1998) 153–6.
113 See s 7(2) of the Constitution which states that the state has a duty to respect, protect, promote
and fulfil the rights in the Bill of Rights and Minister of Finance and Other v Van Heerden
(CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC); [2004] 12
BLLR 1181 (CC) (29 July 2004) para 24.
114 See ss 26–8 of the Constitution.
115 See s 9(4) of the Constitution.
116 See generally ss 40(2) and 41(1). See also s 32 (access to information); s 33 (right to fair and
just administrative action); and ss 34 and 38 (access to courts) and s 234 (charters of rights).
117 Makwanyane paras 224 and 263.
118 See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
para 135: ‘The Constitution acknowledges the variability of human beings (genetic and socio-
cultural), affirms the right to be different, and celebrates the diversity of the nation.’
119 S 1(a); s 7(1); s 39(1).
120 AZAPO para 43.
121 Makwanyane para 321 per O’Regan J: the language of fundamental rights is ‘broad and
capable of different interpretations’; para 207 per Kriegler J: ‘… it would be foolish to deny
that the judicial process, especially in the field of constitutional adjudication, calls for value
judgments in which extra-legal considerations may loom large’; para 266 per Mahomed DP:
‘The Constitution must be examined with reference, inter alia, to the text, context and the
factual and historical considerations’; para 382 per Sachs J: ‘in seeking the kind of values
which should inform the court’s approach to interpretation the “rational and humane
adjudicatory approach” must be preferred’.
122 See also Makwanyane para 207 per Kriegler J: ‘… methods to be used are essentially legal, not
moral or philosophical … it would be foolish to deny that the judicial process, especially in the
field of constitutional adjudication, calls for value judgments in which extra-legal
considerations may loom large. Nevertheless the starting point, the framework and the outcome
of the exercise must be legal’; para 349 per Sachs J: ‘Our function is to interpret the text of the
Constitution as it stands. Accordingly whatever our personal views on this fraught subject
might be, our response must be a purely legal one’; para 266 per Mahomed DP: ‘… difference
between a political election made by a legislative organ and decisions reached by a judicial
organ, like the Constitutional Court, is crucial’.
123 See Klare (1998) 172–87 for examples of this kind of reasoning by the judges of the
Constitutional Court.
124 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995) para 266.
125 See Zuma para 15: the reference to R v Big M Drug Mart Ltd (1985) 18 DLR (4th) at 321;
President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4;
1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 41; Prinsloo v Van der Linde and
Another (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997)
para 32 quoting from Egan v Canada (1995) 29 CRR (2d) 79 at 104–05. On the use of history,
see, for example, Zuma para 15 per Kentridge J: ‘… regard must be paid to the legal history,
traditions and usages of the country concerned …’; Makwanyane para 39 per Chaskalson P:
‘we are required to construe the South African Constitution … with due regard to our legal
system, our history and circumstances …’; para 264 per Mahomed DP: ‘It is against this
historical background and ethos that the constitutionality of capital punishment must be
determined.’; paras 322–23 per O’Regan J: ‘… the values urged upon the Court are not those
that have informed our past…’ and in ‘…interpreting the rights enshrined in Chapter 3,
therefore, the Court is directed to the future’; Executive Council of the Western Cape
Legislature and Others v President of the Republic of South Africa and Others (CCT27/95)
[1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995) para 61 per
Chaskalson: the nature and extent of the power of Parliament to delegate its legislative powers
ultimately depends ‘on the language of the Constitution, construed in the light of the country’s
own history’.
126 For a short review of contextual interpretation by the Constitutional Court, see Currie, I and De
Waal, J (2013) The Bill of Rights Handbook 140–5.
127 See De Vos (2001).
128 Soobramoney paras 8–9.
129 See South Africa: 2009 National Assembly Election Results, Electoral Institute for Sustainable
Democracy in Africa, available at http://www.eisa.org.za/WEP/sou2009results1.htm.
130 The number of seats refers to the number of representatives of each party in the National
Assembly.
131 See Choudhry (2009) 1–85. Whether South Africa can indeed be characterised in this manner
has been the subject of intense debate. See Southall, R (1994) The South African elections of
1994: The remaking of a dominant-party state Journal of Modern African Studies 32(4):629–
55; Giliomee, H (1998) South Africa’s emerging dominant-party regime Journal of Democracy
94:128; Southall, R (1998) The centralization and fragmentation of South Africa’s dominant
party system African Affairs 97(389):443–69; Friedman, S ‘No easy stroll to dominance: Party
dominance, opposition and civil society in South Africa’ in Giliomee, H and Simkins, C (eds)
(1999) The Awkward Embrace: One Party Domination and Democracy 97; Giliomee, H,
Myburgh, J and Schlemmer, L (2001) Dominant party rule, opposition parties and minorities in
South Africa Democratization 8(1):161–82; Southall, R (2001a) Opposition in South Africa:
Issues and problems Democratization 8(1):1–24; Southall, R (2001b) Conclusion: Emergent
perspectives on opposition in South Africa Democratization 8(1):275–84; Alence, R (2004)
South Africa after apartheid: The first decade Journal of Democracy 15(3):78–92 at 78;
Hamill, J (2004) The elephant and the mice: Election 2004 and the future of opposition politics
in South Africa The Round Table: The Commonwealth Journal of International
Affairs 93(377):691–708; Lodge, T (2004) The ANC and the development of party politics in
modern South Africa Journal of Modern African Studies 42(2):189–219; Southall, R (2005)
The ‘dominant party debate’ in South Africa Afrika Spectrum 40(1):61–82; Suttner, R (2006)
Party dominance theory: Of what value? Politikon: SA Journal of Political Studies 33(3):277–
97; Handley, A, Murray, C and Simeon, R ‘Learning to lose, learning to win: Government and
opposition in South Africa’s transition to democracy’ in Friedman, E and Wong, J (eds) (2008)
Political Transitions in Dominant Party Systems: Learning to Lose 191.
132 Lodge (2004) 205–7.
Basic concepts of constitutional
law

2.1 Introduction
2.2 Constitutionalism
2.2.1 Understanding the nature of constitutionalism
2.2.2 Constitutionalism as a descriptive doctrine
2.2.3 Constitutionalism as a prescriptive doctrine
2.2.4 Models of constitutionalism
2.2.4.1 The Westminster constitutional model
2.2.4.2 The United States constitutional model
2.2.4.3 The German constitutional model
2.2.5 Constitutionalism in South Africa: a brief overview
2.2.5.1 The era of the dominance of the Westminster
constitutional model
2.2.5.2 The era of constitutional supremacy
2.2.5.2.1 Constitutional supremacy
2.2.5.2.2 A value-based constitutional system
2.2.5.2.3 Co-operative federalism
2.3 Separation of powers
2.3.1 The purpose and principles of the doctrine of separation
of powers
2.3.2 A brief history of the doctrine of separation of powers
 2.3.3 Separation of powers: the South African experience
2.3.3.1 The legislature
2.3.3.2 The executive
2.3.3.3 The judiciary
2.3.4 The counter-majoritarian dilemma
2.4 The rule of law
2.4.1 A brief history of the rule of law
2.4.2 The rule of law under the 1996 Constitution
2.5 Democracy
2.5.1 Conceptions of democracy
2.5.2 Direct democracy
2.5.3 Representative democracy
2.5.4 Participatory democracy
2.5.5 Constitutional democracy
Summary

2.1 Introduction
To obtain a sound command of South Africa’s constitutional law, it is
important that we consider certain fundamental concepts at the outset. This
is necessary to establish some level of common understanding of the
principles, doctrines and concepts that lie at the heart of how our
Constitution operates, the context that gave rise to it as well as the context
in which it operates. These concepts lie at the heart of the South African
Constitution and find expression in many of the provisions of the
Constitution. When studying specific aspects of the Constitution, this needs
to be done against the background of the concepts discussed below.
The principle aim of this chapter is therefore to introduce some of the
more important overarching ideas that are pivotal in both explaining and
contextualising the development of South African constitutional law.
Although we focus on constitutional developments that have taken place in
the period after South Africa’s transition to democracy, we also briefly
consider some important constitutional moments from bygone colonial and
apartheid periods for purposes of context. We will also attempt to locate
these constitutional developments within a broader historical and political
context that recognises the influence of the constitutional law and practices
of other countries.

2.2 Constitutionalism

2.2.1 Understanding the nature of constitutionalism

Constitutionalism as an idea or a term is not easy to define. The term
‘constitutionalism’ is sometimes used to convey the idea of a government
that is limited by a written constitution: it describes a society in which
elected politicians, judicial officers and government officials must all act in
accordance with the law which derives its legitimacy and power from the
constitution itself.1 Constitutionalism, in this sense, is thus concerned with
the problem of how to establish a government with sufficient power to
realise a community’s shared purposes and to implement the programmes
for which a specific government has been elected by voters. At the same
time, at issue is how to structure that government and control the exercise
of power by the various branches of that government (and other powerful
role players in society) in such a way that oppression and abuse of power is
prevented.2 As such, constitutionalism is closely related to the notions of
democracy and theories of governance.
As a starting point, we can identify some characteristics of
constitutionalism that will assist us to understand its nature:
• First, constitutionalism is concerned with the formal and legal
distribution of power within a given political community in which a
government is ordinarily established in terms of a written constitution.3
• Second, constitutionalism provides for the establishment of the
institutions of governance, such as the legislature, the executive and the
judiciary.
• Third, constitutionalism brings about the creation of binding rules or
laws for the regulation of the political community, its institutions of
 governance and the governed.
• Fourth, constitutionalism plays an important role in determining the
nature and basis of relations that exist between institutions of governance
and those they govern.
• Last, and implicit in the previous points, constitutionalism prescribes
limits on the exercise of state power and provides mechanisms to ensure
that the exercise of power does not exceed the limits set by the
constitution.
While this is by no means an attempt at a definition, in identifying these
characteristics, we attempt to expose the types of matters with which
constitutionalism would ordinarily be concerned. In the section that follows
immediately below we elaborate further on what constitutionalism is.
Accepting the characteristics of constitutionalism described above, we
can conclude that, in essence, constitutionalism is about the notion that a
constitution must both structure and constrain state power. On the one
hand, a constitution must allocate power to various branches of government
to allow for the effective governing of a state. On the other hand, it must
limit and/or disperse that power to ensure that it will not be abused.
While constitutionalism seeks to achieve what are clearly important, if
not sometimes conflicting, goals, we must acknowledge that constitutions
are not self-executing documents nor do they contain identical provisions.
The development of a particular system of constitutionalism and its
relationship with other important constitutional law concepts, such as the
rule of law, the protection of human rights and democracy, therefore, will
depend on which constitution is under consideration, the relevant political
and social history of the society in which it is being established and the
particular rules, principles and institutions it establishes. Consequently, over
the centuries during which the concept has evolved, different
understandings as well as different models of constitutionalism have
developed. The development of these models depended on how a particular
constitution structured and allocated power and which norms were
emphasised as foundational to the system by the text of the constitution
and/or by the interpretation and application of that text by judges. We
consider some of these understandings and models below.
PAUSE FOR REFLECTION

The unique nature of South African

constitutionalism
In S v Makwanyane and Another, Mahommed J made the
following statement which, arguably, captures the unique
nature of South African constitutionalism:
All Constitutions seek to articulate, with differing degrees of
intensity and detail, the shared aspirations of a nation; the values
which bind its people, and which discipline its government and its
national institutions; the basic premises upon which judicial,
legislative and executive power is to be wielded; the constitutional
limits and the conditions upon which that power is to be exercised;
the national ethos which defines and regulates that exercise; and
the moral and ethical direction which that nation has identified for
its future. In some countries, the Constitution only formalizes, in a
legal instrument, a historical consensus of values and aspirations
evolved incrementally from a stable and unbroken past to
accommodate the needs of the future. The South African
Constitution is different: it retains from the past only what is
defensible and represents a decisive break from, and a ringing
rejection of, that part of the past which is disgracefully racist,
authoritarian, insular, and repressive and a vigorous identification
of and commitment to a democratic, universalistic, caring and
aspirationally egalitarian ethos, expressly articulated in the
Constitution. The contrast between the past which it repudiates and
the future to which it seeks to commit the nation is stark and
dramatic.4

This passage highlights the fact that South African

constitutionalism must be understood as relating to more
than the mere technical legal regulation of the exercise of
state power (and the limits placed on the exercise of that
power) by the various branches of government. South
African constitutionalism is thus not only a descriptive
doctrine, factually describing what institutions should
exercise power in what particular manner. It is also a
prescriptive doctrine as it prescribes how state power
should be exercised in a legitimate manner, which is
 related to the democratic legitimacy of the exercise of that
power, and it prohibits the exercise of state power in
certain ways. It is also normative as it sets out the values
that must be adhered to in the governing process. This
limits the kinds of actions that any state institutions, and
sometimes also private institutions, are permitted to
perform. We explore these aspects further below.

2.2.2 Constitutionalism as a descriptive doctrine

We can view constitutionalism as a descriptive doctrine or, put slightly
differently, we can understand it in a descriptive sense. Understood in this
way, constitutionalism seeks to provide a factual description of the
institutions, procedures and structures that make up the constitutional
system of a particular state.5 This understanding of constitutionalism is
formalistic in nature: it focuses on explaining the distribution of power, the
relations between the branches of government and the limitations on power
as provided for in a given constitution. It does not concern itself with
whether state power is being used in contravention of democratic or human
rights norms. In other words, it does not seek to make value judgments as to
whether the state in question adheres to or upholds its own constitutional
limits or rules or whether it provides for an essentially democratic system of
government.
Constitutionalism as a descriptive doctrine tends to represent a practice
that has largely fallen out of favour as it reduces constitutionalism to a mere
explanation of a constitution’s structure and operational design. It was in
this descriptive sense only that we could, prior to the advent of democracy
in South Africa, speak of South African constitutionalism. This was similar
to other colonial territories where there was a constitution but the
constitution failed to establish a truly democratic system of government,
and concepts of equal rights or even equal citizenship for both black and
white inhabitants were absent. This form of constitutionalism could at best
be described as an empty form of constitutionalism as it focused on form
rather than on substance.
 PAUSE FOR REFLECTION

Constitutionalism as a descriptive doctrine in

practice
The purely descriptive form of constitutionalism discussed
above can be illustrated with reference to the facts and
reasoning of the Appellate Division’s decision in Harris and
Others v Minister of the Interior and Another,6 in which
amendments to the Union Constitution then in place were
challenged on procedural grounds.7 The Union
Constitution required that constitutional amendments be
passed by the two Houses of Parliament sitting together
(unicamerally) with a two-thirds majority. However, a
constitutional amendment, removing coloured people from
the common voters roll, was passed bicamerally (both
Houses of Parliament sitting separately) with a simple
majority.
The Court held that the failure on the part of Parliament
to pass the constitutional amendment in accordance with
the procedure set out in the Union Constitution resulted in
such legislation not being recognised as an Act of
Parliament and was therefore invalid. The Court could not
enquire into whether the removal of coloured people from
the common voters role would diminish the democratic
aspects of the Union Constitution or whether the right to
vote would be infringed. It was empowered merely to
determine, on procedural grounds, whether the
amendment was valid or not.

2.2.3 Constitutionalism as a prescriptive doctrine

More recently, the understanding of constitutionalism has evolved. This
evolution has seen constitutionalism become a prescriptive doctrine that
seeks to define in general terms the manner in which state power is
allocated and exercised. In terms of this understanding, constitutionalism
assumes some prescriptive force that establishes the norms and principles
that define what may be termed to be a constitutional government.8
Constitutionalism, thus understood, demands that a particular constitutional
system adhere to the following norms and principles: separation of
powers; the rule of law; democratic self-government; the protection of
human rights; and the existence of an independent judiciary.9
We discuss certain of these norms and principles in more detail below.
However, before doing so, we briefly discuss three different models of
constitutionalism that have influenced South Africa’s constitutional
development.

2.2.4 Models of constitutionalism

Constitutions, while broadly serving the same purpose, can vary widely in
terms of their structure and content. One factor that influences the form and
substance of a constitution is the peculiar history of the country in which it
was drafted. The issues addressed by a constitution usually reflect the
specific period and place of the drafting, as well as the prevailing power
relations between political and economic actors in that society. Also
influencing the content of the constitution are the social, political, legal and
cultural traditions of that society 10 and the shared norms of that society (or
at least the norms embraced by the elite who drafted the constitution).
However, as the nation-state has become the most dominant form of
government in the world, so too has there been some level of coalescence
around the general framework and content of constitutions11 as well as
around models of constitutionalism. This has led to two major constitutional
models that have greatly influenced the development of constitutionalism
over the past 50 years. We refer here to the Westminster constitutional
model and the United States (US) constitutional model which we consider
in turn below. Both these models have had a great influence on South
African constitutional history. We also consider a third model, namely the
German model, which has also been influential in the South African
context, more especially in the post-apartheid era.
2.2.4.1 The Westminster constitutional model
The Westminster constitutional model has its origins in Britain.12 The
Westminster model evolved over an extensive period during which it came
to be characterised by certain distinctive features.13 One particularly
interesting fact about the Westminster constitutional model is that, as a
model, it is premised on Britain’s Constitution which to date remains
unwritten. In fact, what is commonly known as the British Constitution is
actually a series of conventions and ordinary laws in the form of statutes,
common law and case law that broadly regulate state power as well as the
relations between the state and its citizens.14 These laws taken collectively
comprise the British Constitution. However, where the Westminster model
has been adopted, particularly in former British colonies such as pre-
democratic South Africa, Botswana and Zimbabwe, the practice has been to
reduce the constitution to writing.
At the heart of the Westminster model is the legislative branch, namely
Parliament. In Britain, Parliament comprises the House of Commons (the
directly elected lower House) and the House of Lords (the unelected upper
House). Parliament is of central importance as it exercises sovereign or
supreme law-making powers. This means that any law made by Parliament
cannot be undone by anybody or any organ except by Parliament itself.15
This characteristic feature of a Westminster-style constitution is also known
as parliamentary supremacy or parliamentary sovereignty. This means that
in Britain there is, in principle, no fundamental law which cannot be altered
by ordinary parliamentary action and there is no bill of rights which denies
Parliament the power to destroy or curtail liberties. Parliament is said to
have the power to make any law on any subject.
The contemporary position is, however, not so clear cut. First, the United
Kingdom’s accession to the European Union has subjected Parliament, to
some degree, to the laws of the European Community.16 Second, it has
long been recognised that there are certain measures that it would be
politically impossible to adopt and whose enactment would never be
attempted.17 Parliamentary sovereignty in Britain, properly understood,
thus ‘denotes only the absence of legal limitations, not the absence of all
limitations or … inhibitions, on Parliament’s actions’.18 Such exceptions
notwithstanding, the fact that Parliament is the ultimate law-making
authority does not excuse or exempt it from being bound to respect the rule
of law. We discuss the rule of law later in this chapter.
Another notable feature of this constitutional model is the formal
separation between the head of state and the head of government. In
practice, the head of state in Britain is the monarch (currently Queen
Elizabeth II) while the head of government is the Prime Minister. After an
election, the monarch calls on the leader of the majority political party in
Parliament (or the person chosen by a coalition of parties where no party
has achieved an overall majority and a coalition has been formed) to form a
new government. The Prime Minister is the head of this new government
and is usually the leader of the majority party in Parliament. The
government is formed and governs in the monarch’s name as long as it
retains the support of a majority of Members of Parliament.19 Therefore,
with this model, political parties play an important role in forming a
government and retaining it in power.
A closely related feature of the Westminster constitutional model is that
of parliamentary government. Parliamentary government means that the
executive branch of government, namely the Prime Minister and the
Cabinet, are all drawn from and continue to be Members of Parliament. The
Prime Minister and his or her Cabinet thus serve both as members of the
legislature and as members of the executive at the same time.20 There is
therefore no strict separation of powers between the legislature and the
executive as is the case in the US system discussed below. The Prime
Minister engages in regular question-and-answer sessions in Parliament
during the Prime Minister’s questions time where he or she verbally spars
with the leader of the opposition and other members of opposition parties.
The effect of this practice is that Parliament continues to exercise an
oversight role over the executive. Members of the executive are required to
account to Parliament as to how they exercise their powers in conducting
government business, including the development of policy and the
implementation of the law, on a continuous basis.
We now turn our attention to the courts. The courts’ function in this
model must be viewed in light of the doctrine of parliamentary supremacy
discussed above. As an incidence of parliamentary supremacy, the courts
under this model enjoy no powers to decide on the constitutionality of
legislation although they may review administrative decisions of the
administration.21 The effect of this limitation on the courts’ powers is that
it makes them institutionally less powerful than the legislature. However,
this does not mean that the courts do not enjoy significant powers nor that
they are any less important than the legislature within the entire scheme of
governance under this constitutional model. While the courts may not have
constitutional review powers, they do, when adjudicating matters, have a
significant opportunity to influence how the law is applied as well as its
impact in a given situation.
In 1998, the British Parliament adopted the Human Rights Act 22 which
gives effect in British law to many of the provisions of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(1950). However, in theory, Parliament retains its sovereignty although the
courts must now interpret legislation consistently with the provisions of the
European Convention whenever possible. Some of the national courts are
empowered to issue declarations of incompatibility if they find legislation
to be in conflict with the norms embodied in the European Convention. This
triggers the possibility of fast-track amendments by means of administrative
legislation. If this is not sufficient, the provisions of the Act can be
challenged before the European Court of Human Rights. Although
Parliament can, in theory, depart from orders of this court, it seems
politically ever less feasible that it will do so.23
Because of the important role played by the courts, the Westminster
constitutional model demands as one of its defining features that the
judiciary be independent. It thus requires that the judiciary function
independently of Parliament and the executive. Remaining judicially
independent means that judges must not be subjected to any undue
influence either by Parliament or by the executive while they discharge
their duties. This has necessitated the inclusion of mechanisms that seek to
guarantee judicial independence, including the following:
• First, judicial independence is guaranteed by way of security of tenure
that requires that judges are appointed for life.
• Second, judges cannot be removed from their judicial office except
where they are found to have contravened the law or otherwise engaged
in serious misconduct.
• Third, judges’ salaries are guaranteed and cannot be reduced while their
tenure continues.24

Figure 2.1 The overlap between the legislature and the executive
indicates that the members of the executive are drawn from
Parliament

2.2.4.2 The United States constitutional model

The United States (US) constitutional model 25 originates, as its name
indicates, in the United States of America. The US constitutional model can
immediately be distinguished from the Westminster model by way of the
history of its making. While the Westminster model evolved organically
over centuries, the US model was the product of ‘a deliberate process of
constitution-making’ in the late 1780s involving 13 former British colonies
that had been established in the territory.26 In coming together to form a
federation under the banner of the United States of America, these former
colonies established a Constitution and a constitutional system that today
endures as the longest-surviving system based on essentially the same
written Constitution.27 In the following section we discuss some of the
characteristic features of US constitutionalism.
As a constitutional model that arose out of ‘a deliberate process’, a
process which aimed to unify 13 independent colonies, one of the main
issues of concern was that of the exercise of political power; more precisely,
how to limit the exercise of political power by the federal government. To
achieve an effective balance between regulating the former colonies’
collective interests on coming together and ensuring that power was not
overconcentrated in one source, the drafters of the US Constitution divided
power along two lines. In the first instance, the drafters created a two-tier
federal state with a central federal government on one level and state
governments on another level. This federal division of power resulted in
certain specified powers and functions being allocated to the national
federal government. The remainder or residue of powers and functions was
left to the states which came together to form a ‘more perfect union’.28 The
result of this division of power is that it ascribes exclusive functions and
competencies to each level of government. Ultimately, as a constitutional
principle, federalism serves as an important limitation on an overly
powerful central government. At the same time, it promotes diversity and
local autonomy by allowing each state to deal with many of the day-to-day
issues affecting its citizens.29
The second line along which the US Constitution limits power is in terms
of the concept of separation of powers adopted by the drafters of the
Constitution. The doctrine of separation of powers dictates that
governmental power be divided according to function (and, in the most
rigid cases, of personnel too) between three primary branches of
government, namely the legislature, the executive and the judiciary. The US
constitutional model provides for the most stringent separation in respect of
the branches, their functions and personnel. While a similar separation of
branches exists under the Westminster model, the US’s model is radically
different in that the separation between the three branches is far more
absolute. For example, the US model of separation of powers provides for a
complete separation of personnel between the three branches of government
– no one may be a member of more than one branch at any given time.30
Contrast this with the Westminster system of parliamentary government
where members of the executive (the Prime Minister and his or her Cabinet)
are also necessarily Members of Parliament.
The US model does not, however, demand a complete separation of
powers in all respects. Instead, the US model introduced an important
innovation from a constitutional law point of view, namely a system of
checks and balances. This system of checks and balances allows the three
branches to enjoy a limited amount of power to check the exercise of power
by the other branches in prescribed circumstances in order to maintain a
balance of power among them. The US model ensures that no one branch
can function completely independently of the other while ensuring that no
one branch accumulates excessive powers.31 It is based on the assumption
that the concentration of power in one body would lead to a possible abuse
of power. For example, while the legislative branch enjoys the power to
legislate, this power is subject to the presidential veto in terms of which the
President can block legislation from coming into force despite the
legislature having passed it. Equally, another example of a check is where a
court declares a statute to be unconstitutional in spite of the fact that such
legislation was properly passed by a legislative majority.
Figure 2.2 Checks and balances in the US model of
constitutionalism
Another defining feature of the US constitutional model is that of
constitutional supremacy. Contrasted with parliamentary supremacy under
the Westminster model, constitutional supremacy is premised on the notion
that the constitution is the highest law and requires all other law and
conduct to comply with its provisions. Put differently, constitutional
supremacy means that the constitution is the ultimate source of all law and
lawful exercise of authority. Subject to the constitution being amended, the
appropriate court must declare invalid any law passed by the legislature or
conduct by a governmental body or organ that is in conflict with or is
otherwise inconsistent with the constitution.
The inclusion of a Bill of Rights by the drafters 32 is another important
contribution made by the US constitutional model. The importance of a bill
of rights is that it also serves as a limit on the power of government by
setting out those individual freedoms and liberties on which the government
may not encroach. Constitutionally protected rights, in other words, serve as
a protective mechanism for safeguarding rights-holders’ interests against
governmental trespass. Of course, remember that although the language of
the US Bill of Rights was couched in universal terms and would later serve
to inspire many other countries in their quest for independence, the US Bill
of Rights was a product of its times. So while the Bill of Rights proclaimed
that ‘all men [sic] are created equal’ and that their rights are ‘inviolable’ in
1789, it did not protect native Americans and Africans (many of whom
were brought to the US and held in slavery). Women also did not originally
enjoy equal rights with men.
The final feature of the US model that we consider here is the institution
of judicial review. The US Supreme Court asserted its power of judicial
review for the first time in Marbury v Madison.33 This power is an
important check on the legislature and the executive as it empowers the
courts to declare unconstitutional any law or conduct found to contravene
the constitution. However, the US Constitution does not expressly provide
for this checking power exercised by the courts on the other branches of
government. This fact, alongside the fact that the power of judicial review
essentially permits courts to overrule a majority decision taken by the
legislature on behalf of millions of citizens, also known as the counter-
majoritarian dilemma,34 has ensured that to this day the power remains
controversial in the US.
We deal with counter-majoritarianism in more detail below. For
present purposes, it is imperative that we point out that the overriding
importance of judicial review is that for a constitutional system premised on
the doctrine of constitutional supremacy and providing for a bill of rights to
have excluded powers of judicial review would have weakened the system
immensely.35 The reason for this is that there would otherwise be no
politically non-partisan organ of state charged with upholding and
enforcing the constitution.36

PAUSE FOR REFLECTION

Justification for the courts’ power of review
In Marbury v Madison, then US Chief Justice Marshal
established the principle that the courts have the right to
review and set aside legislation that contravened the
Constitution. He made the following argument to justify his
decision:
This theory is essentially attached to a written constitution, and is
consequently to be considered by this court as one of the
fundamental principles of our society. It is not therefore to be lost
sight of in the further consideration of this subject. If an act of the
legislature, repugnant to the constitution, is void, does it,
notwithstanding its invalidity, bind the courts and oblige them to
give it effect? Or, in other words, though it be not law, does it
constitute a rule as operative as if it was a law? This would be to
overthrow in fact what was established in theory; and would seem,
at first view, an absurdity too gross to be insisted on. It shall,
however, receive a more attentive consideration. It is emphatically
the province and duty of the judicial department to say what the law
is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule. If two laws conflict with each other,
the courts must decide on the operation of each. So if a law be in
opposition to the constitution: if both the law and the constitution
apply to a particular case, so that the court must either decide that
case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law: the court
must determine which of these conflicting rules governs the case.
This is of the very essence of judicial duty. If then the courts are to
regard the constitution; and the constitution is superior to any
ordinary act of the legislature; the constitution, and not such
ordinary act, must govern the case to which they both apply. Those
then who controvert the principle that the constitution is to be
considered, in court, as a paramount law, are reduced to the
necessity of maintaining that courts must close their eyes on the
constitution, and see only the law. This doctrine would subvert the
very foundation of all written constitutions. It would declare that an
act, which, according to the principles and theory of our
government, is entirely void, is yet, in practice, completely
obligatory. It would declare, that if the legislature shall do what is
expressly forbidden, such act, notwithstanding the express
prohibition, is in reality effectual. It would be giving to the
legislature a practical and real omnipotence with the same breath
which professes to restrict their powers within narrow limits. It is
 prescribing limits, and declaring that those limits may be passed at
pleasure. That it thus reduces to nothing what we have deemed the
greatest improvement on political institutions – a written
constitution, would of itself be sufficient, in America where written
constitutions have been viewed with so much reverence, for
rejecting the construction. But the peculiar expressions of the
constitution of the United States furnish additional arguments in
favour of its rejection. The judicial power of the United States is
extended to all cases arising under the constitution. Could it be the
intention of those who gave this power, to say that, in using it, the
constitution should not be looked into? That a case arising under
the constitution should be decided without examining the
instrument under which it arises? This is too extravagant to be
maintained.37

This passage contains the classic justification for judicial

review in a system where the constitution is supreme and
the rule of law is adhered to. It is premised on the idea that
a supreme written constitution would be of little use if the
courts could not declare invalid those laws that contravene
sections of the constitution. Where promises are made in a
constitution, but no impartial body is empowered to enforce
those promises, they may very well remain illusory.
However, it does not deal with the question of whether
unelected judges – or individuals belonging to another
institution or body – should be awarded the power to
declare invalid laws duly passed by the democratically
elected legislature.

One major contribution to constitutional law that can arguably be attributed

to judicial review has been the development of a body of law that deals with
how governmental power under a supreme constitution is to be properly
exercised. This body of law also deals with how the relations between the
different branches or levels of government should be balanced and resolved
on the basis of constitutional principles rather than politics. The US form of
judicial review, based on its Bill of Rights, has also greatly influenced the
development of human rights norms and standards.
Table 2.1 A comparison of constitutional supremacy and
parliamentary supremacy

Constitutional supremacy Parliamentary supremacy

Country of origin US UK

Supreme source of law Constitution Parliament

Effect of supremacy of The Constitution is supreme Parliament is the supreme

such law and any law or conduct law-making authority. Laws
established to be made by Parliament cannot
inconsistent with the be struck down except
Constitution stands to be where they have been
struck down by the courts enacted without following
the correct procedures

2.2.4.3 The German constitutional model

Thus far we have considered the two constitutional models that, first, have
endured substantially unchanged for several centuries and, second, that are
recognised as being significant contributors to the development of our
understanding of constitutionalism, especially in South Africa. There is,
however, one other model that we shall consider that has been of some
influence before turning to the South African constitutional model. This is
the German model.38
Germany has a long constitutional history that dates back at least to the
1800s. Despite this long history, Germany has gone through several
significant constitutional changes and configurations caused by shifts in
state power, state form and, more importantly, the intervention of two world
wars. As such, our interest in the German constitutional model commences
from 1948 after the Second World War and the fall of the Nazi regime.39
The constitutional model established in this period was in many ways a
reaction to Nazi atrocities in much the same way that parts of the South
African Constitution were drafted in reaction to South Africa’s apartheid
past. The German model sought to ensure that the inhumane excesses of the
period could never be re-enacted under a new constitutional dispensation.
The Constitution that was produced in response to this history is one from
which South African constitutional law has drawn as it has also sought to
deal with South Africa’s own past of racial violence, exploitation and
exclusion. In this section, we highlight some of the most significant features
of this model, especially those that we believe resonate with the current
South African constitutional dispensation.
Like the US constitutional model, the German model is premised on the
notion of constitutional supremacy. However, in developing its unique
constitutional model, Germany has, by the inclusion of constitutional
values, added another important layer to the notion of the constitution being
supreme. In this respect, the drafters of the German Constitution sought to
establish a value-based democratic order that attempts to ‘secure democratic
rule in Germany by binding the democratic process to the values and
principles expressed in the constitution’.40 The Constitution is thus not
viewed as a neutral document that merely regulates state power, but as a
document that aims to impose a normative value system on that country.41
This means that where the German Constitution is applied or interpreted, it
should entail an application or interpretation that accords with and promotes
the values embodied in the Constitution. Central to this value-based order is
the value of human dignity which, under the German Constitution, is
declared to be ‘inviolable’ and cannot be amended.42 The dimension that
this value-based democratic order adds is that it recognises the importance
of establishing a constitutional culture of broadly shared values and that
such values may actually be just as important as the rules, processes and
institutions established under the constitution.
The concept of Rechtsstaat is yet another defining feature of the
German constitutional model.43 In terms of Rechtsstaat, the Constitution is
established as the higher law with which all other laws and state conduct
must comply.44 However, the importance of the concept of Rechtsstaat in
the German constitutional system is that it demands more than mere formal
constitutional compliance or procedural safeguards that prohibit the
arbitrary exercise of power. It also demands that the law and state actors
must ‘strive to protect freedom, justice and legal certainty’.45 With regard
to legal certainty, the concept of Rechtsstaat is closely linked to the notion
of the rule of law as it also encompasses the idea that legal rules must be
clear and enforced equally.46 However, it is often said to encompass a more
substantive aspect: in a Rechtsstaat, the Constitution, as interpreted by the
Constitutional Court, ensures the normative preconditions on which the
realisation of the rule of law and especially the formulation of individual
human rights claims are based.47 In this sense, a German understanding of
the Rechtsstaat will always be bound to the context of the democratic and
social constitutional state. If the democratic or the social welfare aspects of
the state are fundamentally eroded, the Rechtsstaat will no longer be
respected.
Another major feature of the German constitutional model is that it
established Germany as a social state.48 By establishing Germany as a
social state, the Constitution places the state under an obligation to provide
for the basic needs of members of German society, including housing,
water, electricity and education.49 The social state is premised on the value
of human dignity. It holds that every person has an inherent value as a
human being which was denied by the Nazi government. As such, the state
has an obligation to create an environment in which people can reach their
full potential as human beings. The social state is, therefore, about more
than just state welfare. It is a philosophical principle which assumes that the
value of human dignity can only be respected where the state plays a role in
protecting individuals and by providing the basics which make living one’s
life meaningful. Although the German Constitution clearly establishes a
social state, it interestingly does not expressly include any socio-economic
rights in its Bill of Rights in the sense of individually enumerated rights.50
Instead, under the notion of a social state and underpinned by a strong
culture of entrenched human rights, the German model establishes an
effective balance between limiting the power of the state and upholding the
rights of citizens, including providing for the basic material needs of a life
worth living.

COUNTER POINT
The notion of a social state versus a free-market
system
A social state can arguably be said to reflect the same
concerns expressed by adherents to the values of ubuntu
as it focuses on the idea of human solidarity. It represents
a rejection of an overly individualistic worldview and affirms
the importance of community and the fact that all people in
society are demeaned when some people do not have their
basic social and economic needs met. Bauman describes
the social state in the following manner:
A state is ‘social’ when it promotes the principle of communally
endorsed, collective insurance against individual misfortune and
its consequences. It is primarily that principle – declared, set in
operation and trusted to be in working order – that recast the
otherwise abstract idea of ‘society’ into the experience of felt and
lived community through replacing the ‘order of egoism’ (to deploy
John Dunn’s terms), bound to generate an atmosphere of mutual
mistrust and suspicion, with the ‘order of equality,’ inspiring
confidence and solidarity. It is the same principle which lifts
members of society to the status of citizens, that is, makes them
stakeholders in addition to being stockholders: beneficiaries, but
also actors – the wardens as much as the wards of the ‘social
benefits’ system, individuals with an acute interest in the common
good understood as a network of shared institutions that can be
trusted and realistically expected, to guarantee the solidity and
reliability of the state-issued ‘collective insurance policy’.51

Some critics of the social-state principle argue that, in

essence, it establishes an unfree or even undemocratic
state that does not protect the free market as it does not
sufficiently restrict the ability of a government to intervene
in the economy. The freedom of individuals to act as they
see fit, and to make a profit and exploit their own talents to
the best of their abilities, would be better protected in a
less welfarist state. This, they argue, is required to enable
freedom to flourish, something that is fundamental to the
proper functioning of a constitutional democracy. They
reject the notion that unbridled capitalism would be
 fundamentally unjust to a large majority of citizens in a
state and that while some would reap huge financial gains,
it would visit misery on others. They argue that a more
radical free-market system would unleash economic
growth that would eventually benefit all members of
society. This, in turn, would better safeguard democracy.
Those who express these views are often, perhaps
unkindly, called market fundamentalists. The views of
market fundamentalists who oppose – to different degrees
– the introduction of social welfare elements in a
constitution are difficult to square with the provisions in the
South African Constitution and with the idea that the South
African Constitution is transformative in nature.52 As we
will see later, the South African Constitution includes a set
of justiciable social and economic rights. This gives
credence to the proposition that, like the German
Constitution, it creates some form of a social state.

The German constitutional model also incorporates a system of separation

of powers. The system divides power along the usual lines into the three
branches, namely the legislature, the executive and the judiciary. In terms of
this system, a bicameral Parliament is established that comprises a
Bundestag 53 (the lower House) and the Bundesrat 54 (the upper House).
Apart from law making, the lower House is responsible for the election of
the Federal Chancellor, the equivalent of a prime minister, who is usually
the leader of the dominant party in the Parliament.55 The Chancellor selects
his or her Cabinet and is responsible, with the Cabinet, for developing
public policy and executing laws.56 The German Constitution also makes
provision for a President whose main function is to serve as a ceremonial
head of state akin to the role played by the British monarch.57 The system
also has a system of administration of justice that includes a Constitutional
Court.58 The primary function of the Constitutional Court is to adjudicate
constitutional matters arising from disputes between state organs, as well as
between the state and private citizens, especially in instances of alleged
rights violations.59
The final feature that bears mentioning for our purposes is that of the
federal system. The German Constitution establishes Germany as a federal
republic. Under the federal government are the provincial or Länder
governments.60 Although the Länder governments have their own
constitutions, such constitutions must generally be in conformity with the
German Constitution.61 The German Constitution also provides the Länder
governments with the authority to regulate their own affairs subject, of
course, to limits placed by it. The Constitution stipulates areas or subject
matter over which the Länder have exclusive competence to legislate and
others over which they have concurrent competence with the Bundestag.

2.2.5 Constitutionalism in South Africa: a brief

overview
We discussed South Africa’s constitutional history in chapter 1 and will
therefore not repeat it here. Instead, the aim of this section is to demonstrate
the influence that the different constitutional models discussed above have
had on the development of the various constitutional models in South
Africa since the formation of the modern South African state in 1910. As
noted in chapter 1, we do not agree with the view that South Africa’s
constitutional history can be explained solely with reference to the formal
structures imposed by the colonial rulers and that South Africa’s
constitutional history started in 1910. Nor do we wish readers to lose sight
of the bifurcated nature of the constitutional arrangements in place from
1910 to 1994. However, as the governance traditions of indigenous South
Africans have had a limited impact on the provisions of the South African
Constitution, we focus here on the colonial history of constitutionalism in
South Africa. We therefore do not claim that the models considered here are
the only ones that have influenced South African constitutional
developments, but it is most certainly arguable that they have had the most
significant and identifiable influence on the constitutional structure and
content of present-day South Africa.
2.2.5.1 The era of the dominance of the Westminster
constitutional model
As discussed in chapter 1, the 1910 Union Constitution 62 established a
colonial government that was tied to the British monarchy in several
significant aspects. Apart from such formal colonial ties, another significant
way in which such ties were manifested was in the constitutional model
adopted at the National Convention of South Africa in 1908–9 which led to
the Union Constitution of 1910. The Union Constitution adopted a
manifestly Westminster form of government which made no provision for a
bill of rights and provided little by way of constitutional guarantees limiting
the power wielded by Parliament.
In 1961, South Africa cut ties with the British Commonwealth and
adopted a republican Constitution.63 Institutionally, very little changed
from the previous Westminster-style Union Constitution, save that the head
of state was no longer the British monarch and the position of a state
president was created to serve a similar ceremonial role previously served
by the monarch.64 In terms of the 1961 Constitution, the prominence of
parliamentary sovereignty as a defining constitutional feature was left in no
doubt as the doctrine was provided for in explicit terms. Section 59 of the
1961 Constitution reads as follows:
Parliament shall be the sovereign legislative authority in
and over the Republic, and shall have full power to make
laws for the peace, order and good government of the
Republic.
No court of law shall be competent to enquire into or to
pronounce upon the validity of any Act passed by
Parliament other than any Act which repeals or amends
or purports to repeal or amend the provisions of section
one hundred and eight or one hundred and eighteen.65
Given the bifurcated nature of the state and the apartheid policies of the
National Party (NP) which governed South Africa from 1948–1994, it is not
surprising that during this period the NP government used parliamentary
supremacy as a powerful instrument to secure political power for the white
minority. In addition, the NP government used parliamentary supremacy to
insulate the many legal provisions which discriminated against black South
Africans and which restricted the basic rights of citizens from effective
judicial scrutiny.
Having said this, however, we must be careful not to confuse the
substance of the Westminster constitutional model with the abuses to which
it was put and can potentially be put. The British experience with
parliamentary supremacy is markedly different from that of South Africa
and bears testimony to the fact that as a model of constitutionalism, there is
nothing inherently flawed or problematic with the Westminster model. Like
all other constitutional models it has its strengths and weaknesses, but any
weaknesses it may have are not directly responsible for the system of racial
exclusion and apartheid. Often, such weaknesses can be traced back to
problems with the political culture and political parties and not necessarily
with constitutional structures.
However, the tainted history of the Westminster system in South Africa
most likely contributed to its not being wholly adopted as the preferred
model during constitutional negotiations in the early 1990s.66 While the
end of apartheid brought with it an end to the era of parliamentary
supremacy in South Africa, aspects of the Westminster system nevertheless
found their way into the South African Constitution in amended form.

2.2.5.2 The era of constitutional supremacy

We discussed the history of the constitutional negotiations in chapter 1 and
detailed the context that informed the choices made by the drafters of the
Constitution. In this section, we therefore describe and discuss the
prominent features of South Africa’s democratic Constitution that arose
from constitutional negotiations.

2.2.5.2.1 Constitutional supremacy

By far the most definitive feature of South Africa’s post-apartheid
constitutional system is that of constitutional supremacy. This notion of a
supreme constitution is an important one on which South Africa’s
democratic constitutional dispensation is based. The Constitution in its
founding provisions 67 expresses supremacy first as a foundational value,
and second, declares the supremacy of the Constitution as a binding and
enforceable rule in no uncertain terms. Section 1(c) of the Constitution
provides:
The Republic of South Africa is one sovereign,
democratic state founded on the following values …
[s]upremacy of the Constitution and the rule of law.
Section 2 of the Constitution provides:
This Constitution is the supreme law of the Republic;
law or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled.68
The decision by the drafters to make the Constitution supreme has had far-
reaching implications for how the current democratic state operates, how
the various structures and institutions relate to one another and how
governmental power is exercised. The meaning of constitutional supremacy
has already been dealt with above and that understanding applies with equal
force to South Africa. What is, however, of interest to us here (and this is a
question that is peculiar to the South African Constitution) is whether there
is a difference between constitutional supremacy as a value captured by
section 1 of the Constitution and the declaration of constitutional
supremacy as a binding and enforceable rule set out in section 2.
Notionally, we would assume that there should be some difference or
significance to the drafters having included the idea of constitutional
supremacy in two different provisions with two differing connotations in
the Founding Chapter of the Constitution.
However, judging from the case law, it appears that the courts have made
nothing of the difference between the two concepts. In fact, we find that
there are few references in the case law to these provisions, save for
passing, unsubstantiated references to the fact that the Constitution is
supreme.69 With respect to the declaration of supremacy in section 2, a
possible reason put forward for the lack of judicial consideration of it is
‘due to the clarity of the rule it states’.70 In other words, there is little room
for alternative interpretations of the provision. This position finds support in
the General Provisions Chapter 71 of the Constitution in which section 237
demands that ‘all constitutional obligations must be performed diligently
and without delay’.
There is a difference in the procedure for the amendment of section 1 and
section 2. On the one hand, the Constitution imposes a higher threshold for
the amendment of section 1 where it requires the supporting vote of at least
75% of the members of the National Assembly (NA) and the support of six
provincial delegations in the National Council of Provinces (NCOP).72 For
section 2, it requires the supporting vote of two-thirds of the members of
the NA.73 However, it is doubtful that Parliament would be able to amend
section 2 without infringing on the values set out in section 1. If this
happens, the constitutional question will arise whether the amendment of
section 2 in effect amends section 1 and thus requires the more onerous
amendment procedure to be followed to be validly passed.
While little seems to turn on whether constitutional supremacy is
appealed to as a value or a binding and enforceable rule, constitutional
supremacy is certainly a defining feature of South African constitutionalism
as it renders the entire Constitution justiciable. Any law or conduct can thus
potentially be tested against the provisions of the Constitution and must be
declared invalid if it fails to comply with these provisions. Given the
justiciability of the Constitution, an important incidence of constitutional
supremacy is therefore the institutionalisation of judicial review which
enjoins the courts to declare any law or conduct inconsistent with the
Constitution invalid.74 This power vested in the judiciary is an important
one that secures the rights of all rights-holders under the Constitution as
well as securing the Constitution itself against violation as no authority or
law is higher than the Constitution. We discuss the institution of judicial
review further in this and subsequent chapters of this book.

PAUSE FOR REFLECTION

Exploring the effects of the supremacy of the
Constitution on the legal system
Chaskalson CJ conveyed the primacy (or supremacy) of
the Constitution lucidly and strongly in Pharmaceutical
Manufacturers Association of South Africa and Another: In
re Ex parte President of the Republic of South Africa and
Others where he stated: ‘There is only one system of law. It
is shaped by the Constitution which is the supreme law,
and all law, including the common law, derives its force
from the Constitution and is subject to constitutional
control.’ 75 This declaration by the Constitutional Court is
pivotal for South African law in general as it affirms the
Constitution as the founding law of the Republic. It also
affirms the unity of the South African legal system which
derives its legitimacy and its binding force from the
Constitution alone. Michelman explained the further
significance of this passage as follows: 76
In those two sentences, the CC [Constitutional Court] claims for the
Final Constitution [FC] not just one special virtue as compared with
the rest of South Africa’s laws but three of them, two of which go
well beyond the claim (which also is there) for the Constitution’s
supremacy in the unadorned, norm-trumping sense declared by FC
s 2. The first of these additional claims is for the pervasiveness of
the Final Constitution’s norms – ‘all law … is subject to
constitutional control.’ The second is the claim for the Final
Constitution’s status as the basic law of South Africa – ‘all law …
derives its force from the Constitution.’ Certainly there is no other
law in South Africa of which it may be said either that all (other) law
is subject to its control or that the force of all (other) law flows or
stems from it. Now, a law to which these unique virtues are
ascribed, along with trumping-sense supremacy, would be about as
superlatively – or ‘radically’ – supreme as a law can get. Suppose,
then, that the CC’s attribution to the Final Constitution of the three
special virtues combined could be seen to posit or reflect a value to
which South Africa’s embrace of the Final Constitution could
defensibly be said to have committed the country; a value, that is,
that stands distinct from and additive to the other human and
societal goods posited as founding values by FC s 1. If we could
see the threefold attribution in such a light, then we might
 understand ‘supremacy of the Constitution’ as it occurs in FC s 1’s
list of founding values to be the textual pointer toward the CC’s
claims in Pharmaceutical Manufacturers for the pervasiveness and
the basic-law status, as well as the normative-trumping force, of the
Final Constitution… . ‘Supremacy of the Constitution’ names the
value of legal-systemic harmony in the service of the vision of the
good society staked out by the entire list of founding values set
forth in FC s 1 and instinct in the rest of the Final Constitution. We
deal here with the value of the unity of the legal system — meaning
the system’s normative unity or, as one might say more poetically,
its visionary unity. The value in question is the value of having all
the institutional sites in which the legal order resides — and
especially all of its courts of law — pulling in the same and not
contrary directions, working in ultimate harmony (which is not to
say without difference and debate) toward the vision (the elements
of which must always be open to interpretation) of a well-ordered
South African society depicted in very broad-brush fashion by the
other founding values listed in FC s 1: human dignity, equality,
human rights and freedoms, non-racialism, non-sexism, and the
basic accoutrements of an open, accountable, representative-
democratic system of government.

If Michelman is correct, it means that the Constitution, and

the norms or values enshrined in it, must now animate all
aspects of South African law (as interpreted, developed
and applied by all South African courts) in the pursuit of
justice. The supremacy of the Constitution then signifies
not only the absolute unity of the legal system, but such a
unity that stands in the ‘service of transformation by, under,
and according to law’.77 No aspect of South African law,
including the common law and customary law, would then
be immune from the influence of the basic values of human
dignity, equality, human rights and freedoms, non-racialism
and non-sexism, as well as the basic accessories of an
open, accountable, representative-democratic system of
government which are embodied in the Constitution. Any
development of the common law and customary law will
have to occur with reference to these basic constitutional
values. The principle of constitutional supremacy, in this
understanding, will thus have a far more profound effect on
 the legal system than merely indicating that all law
inconsistent with the specific provisions of the Constitution
will now be unconstitutional. The trajectory of the
development of all forms of law in South Africa will be
fundamentally altered by the supremacy of the
Constitution, thus understood. This radical aspect of South
Africa’s constitutional model is not always appreciated by
lawyers and judges who continue to work with the common
law, customary law and legislation as if these are entirely
insulated from the norms enshrined in the Constitution.

2.2.5.2.2 A value-based constitutional system

Section 1 of the Constitution affirms that the South African constitutional
model is not only descriptive but prescriptive. This section sets out some of
the most important values on which the South African constitution model is
founded. Section 1 reads as follows:
The Republic of South Africa is one, sovereign,
democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of
democratic government, to ensure accountability,
responsiveness and openness.
Section 1 of the Constitution is of profound importance as it sets out the
foundational values on which the current constitutional dispensation is
based. In so doing, it is self-evident that these values espoused in the
provision reflect a break from the past and establish the foundations of a
new society in the making. This society is governed by law, but the law
derives its force from the Constitution and its development is animated by
the values contained in section 1 of the Constitution. The importance of
these values within the overall constitutional scheme is reflected in the fact
that section 1 is an entrenched provision that can only be amended subject
to special procedures and majorities being attained in Parliament.78

COUNTER POINT

Amending the founding provisions of the

Constitution
The founding provisions are often lauded as being central
to South African democracy and, as Michelman points out,
to the legal system as a whole. However, we will see below
that the values they protect are not inviolable. Amendment
may be made to the founding provisions provided 75% of
the members of the NA and six provinces in the NCOP
vote for such an amendment. Therefore, Parliament could
alter the provision that states that the Constitution (and not
Parliament) is supreme if a required majority of members
of the NA and delegations in the NCOP support this. So
too could the provisions that state the values of human
dignity, the achievement of equality and the advancement
of human rights and freedoms. If Parliament were to make
an amendment of this kind to the Constitution (an unlikely
scenario as no political party has ever acquired the 75%
majority in the NA), it would be possible to restore
Parliament to the position of supremacy it enjoyed during
the apartheid era. Such a Parliament would also be able to
abolish the rule of law.
Some critics argue that it would have been more prudent
of the drafters of the Constitution to have made section 1
unchangeable (something the German constitution-makers
did) 79 to safeguard the democratic and non-racial
character of the South African constitutional system.
Others argue that circumstances and the political,
economic and social context in a country may change over
 time and that future generations should not be absolutely
and finally held to ransom by the drafters of the 1996
Constitution. Such a system, they say, would in extreme
cases invite the government of the day that enjoys
legitimacy and overwhelming electoral support to suspend
the Constitution in its entirety.
How a person views this issue will depend on his or her
commitment to the values enshrined in section 1 as well as
on his or her view of the political landscape and whether an
elected Parliament would ever be able to muster the
requisite heightened majority to abolish the basic values on
which the 1996 Constitution is based.

It is therefore clear that in addition to the clearly articulated values found in

section 1, there are also some unarticulated values embodied in the
Constitution which, together with those in section 1, form the normative
basis of how the South African Constitution is to be interpreted.80 In other
words, our Constitution does not simply set out the rules, processes and
structures that place limits on governmental power. The Constitution also
expresses itself on the ideals and characteristics to which we, as a society,
deem worthy to aspire. This idea should be familiar to us as it is derived
from the notion of a value-based democratic order as found in the German
model discussed above.81 In the South African context, the courts have
recognised the significance of the value-based constitutional system where
they have asserted that the democratic constitutional order has established
an ‘objective normative value system’.82 However, this notion, while
appearing to be incredibly important, has not been the subject of much
attention from the courts 83 or academic commentators in South Africa.84

2.2.5.2.3 Co-operative federalism

The final characteristic of South African constitutionalism that we shall
discuss in this section is that of the federal division of power. The
Constitution provides for what can be deemed a quasi-federal division of
power across three levels or spheres of government, namely national,
provincial and local spheres. This system differs from the traditional federal
system where the powers and functions of different levels of government
are clearly delineated and where each sphere is empowered to deal
exclusively with certain distinct subject matters.
According to Chapter 3 of the Constitution, the model adopted is that of
co-operative federalism or co-operative government. Chapter 3 makes it
clear that while the three spheres of government are distinct, all three
spheres are expected to work together to deliver the vision of the
Constitution.85 Rather than competing with each other, the Constitution
envisages a co-operative relationship between the three levels of
government that entails their sharing responsibilities in a mutually
supportive fashion.86
Co-operation between the three levels of government is not always easy,
especially if different political parties govern different entities in different
spheres. For example, if the African National Contress (ANC) governs
nationally, the Democratic Alliance (DA) governs the Western Cape
Province and a coalition of political parties governs one of the
municipalities in the Western Cape, this will present specific challenges. In
terms of Chapter 3, the ANC national government, the DA Western Cape
government and the coalition municipal government are required to co-
operate with each other. This task is made even more difficult as the
national government, the provincial governments and municipalities
sometimes are all empowered to deal with a specific subject matter, for
example the provision of housing. If political parties are unable to work
together, the governments in the various spheres will not be able to deliver
on their housing mandate in an effective manner. This is why the provisions
of Chapter 3 are of utmost importance for the smooth running of the
country. We will discuss the details of co-operative federalism in chapter 8
of this book.

2.3 Separation of powers

2.3.1 The purpose and principles of the doctrine of
separation of powers
Constitutional restrictions on the exercise of public power can be both
procedural and substantive in nature. Substantive restrictions are achieved
through a justiciable bill of rights and the constitutional commitment to
other values such as the rule of law. The exercise of public power can also
be restricted in a procedural way. One of the most important mechanisms
through which this is achieved in a constitutional democracy is through the
separation of powers.87 The separation of powers doctrine seeks to limit
the powers of each individual branch of government: the legislature, the
executive and the judiciary. The doctrine is therefore the basis for an
institutional, procedural and structural division of public power to create a
society in which the abuse of power by government is curtailed and public
power is exercised wisely, or at least prudently, and not in an abusive
manner.
The South African Constitution makes no express mention of separation
of powers. However, the Constitutional Principles that formed part of the
interim Constitution required that the final Constitution contain a separation
of powers between the three branches of government as well as the
appropriate checks and balances on the exercise of power of each of these
branches to ‘ensure accountability, responsiveness and openness’.88 It is
thus against this background that the doctrine of separation of powers must
be seen as forming an integral component of South African
constitutionalism.
Historically, as a means of limiting governmental power, separation of
powers is primarily concerned with establishing procedural limits on the
exercise of power. As a mechanism to achieve this broad aim, separation of
powers seeks to ensure that power is not concentrated in one institution or
branch, or in one person or office. This is to prevent abuses of power by an
all-powerful government which has concentrated all power in one body or
in one individual such as a president. Separation of powers can be said to be
premised on the understanding that rather than trusting in the benevolence
of rulers, a more predictable and transparent way to prevent tyranny is by
distributing power between different branches of government which can,
individually, be better held to account. Such distribution seeks to limit the
possibility of an overconcentration of power in any one branch and also to
create some level of exclusiveness or specialisation of functions in each of
the branches.
Beyond limiting governmental power by distributing it, the modern
conception of separation of powers is also closely associated with the
protection of human rights more generally in addition to safeguarding
political liberty. This is so because separation of powers aims to protect
society against the abuse of political power, something that is required to
protect human rights. The procedural nature of the separation of powers can
therefore be seen as having a substantive aim – the protection of the human
rights of all and the prevention of the abuse of power.
Before discussing separation of powers in some depth, it is worthwhile to
lay out the four principles that make up the modern conceptualisation of the
doctrine.89 The four principles are as follows:
• First, there is the division of governmental power across the three
branches, namely the legislative branch (parliament), the executive
branch (president/prime minister and cabinet) and the judicial branch
(the courts). This division is often referred to as the trias politica.
• Second, the principle of separation of functions entails conferring
distinct areas of responsibility and authority on each of the three
branches of government and preventing one branch from taking
responsibility for the tasks allocated to another branch.
• Third, the principle of separation of personnel entails that each branch
of government must have assigned to it specific persons who are
responsible, often exclusively, for the performance or execution of that
branch’s function.
• Last, the provision of checks and balances entails that one branch can
be held accountable by other branches to check the exercise of power by
that branch. In certain circumstances, this allows one branch to veto the
actions taken by another branch. This ensures, first, that the branches
remain connected in the discharge of their functions, and second, that the
branches hold each other to account where provided for by the
constitution.
Figure 2.3 Separation of powers doctrine
The principles set out above are generally accepted as the pillars on which
the doctrine of separation of powers is based. However, it is acknowledged
that no constitutional system encompasses a full separation of governmental
authority where power is exercised by each individual branch of
government in isolation from the others.90 Instead, the division of power,
functions and personnel, and the provision for checks and balances, differ
extensively among constitutions that subscribe to the doctrine.

2.3.2 A brief history of the doctrine of separation of

powers
The doctrine of separation of powers as a distinct theory of government is
often said to have its origins in the political philosophy of the
Enlightenment in seventeenth-century Europe.91 However, this may be an
oversimplification. Although no separation of powers as currently
understood existed in pre-colonial southern African societies because
traditional leaders performed all functions of government,92 traditional
leaders were nevertheless expected to consult with an advisory body or to
seek approval from the population at large. They could not take any
important decision without discussing it first in the council. This allowed
for a check on the exercise of power by the relevant chief.93 Nevertheless,
the modern concept of separation of powers is said to have emerged as a
model to explain the English constitutional model developed by John
Locke.94 Locke’s writing on this topic emerged in the wake of the
constitutional developments in England which ended the absolute power of
the monarch. Locke was concerned that absolute monarchic power should
not be replaced by absolute parliamentary power. His writing therefore
wrestled with ways of countering the power-accumulating tendencies of
those in power and the tendency of those in power to abuse the power they
accumulated.95 Locke never envisaged the separation of powers between
the executive and the judiciary. This task fell to French theorist, Charles
Baron de Montesquieu, who devised the modern concept of separation of
powers as we know it today.96 This concept envisaged the division of
governmental power into the trias politica, namely the three branches of
government, the legislative branch, the executive branch and the judicial
branch.
The development of the modern concept of separation of powers must be
seen against a history of absolute monarchy that existed in many parts of
Europe in the seventeenth century.97 During these times, kings or queens
were believed to rule by divine right. This meant that all powers of
governance were located in the person of the king or queen. It was,
therefore, against the danger of an overconcentration of power in the hands
of the monarch that the need to distribute and balance power became self-
evident. At the time, such ideas were regarded as revolutionary as they
sought to bring about radical social change. This included the disruption of
the prevailing social order in which power was the preserve of a narrow
ruling class who were closely associated with the monarch.98 While
initially conceived as a reaction to the absolute power of kings, the central
concern of preventing an over-accumulation of power remained at the core
of the development of the doctrine as constitutional theorists, such as
Locke, warned against the dangers of any one institution, even parliament,
having too much power.99 This modern concept was to find its earliest,
clearest expression in the adoption of the US Constitution wherein the idea
of separation of powers provided a basis for the distribution of power and
the very structure of government.

2.3.3 Separation of powers: the South African

experience
As mentioned above, Constitutional Principle VI in the interim Constitution
required that the final Constitution incorporate a system of separation of
powers. However, this Principle was silent as to the exact nature of the
distribution of power between the three branches and the institutional limits
to be put in place on the exercise of power by each of the branches. Instead,
what Constitutional Principle VI did specify was the purpose for which the
separation of powers had to be incorporated into the 1996 Constitution.
This purpose was to uphold and safeguard important democratic values and
norms, namely ‘accountability, responsiveness, and openness’.100 It was,
therefore, left to the drafters of the 1996 Constitution to determine how the
South African model of separation of powers was to be conceptualised and
incorporated.
Note that there is no universal model of separation of powers. Moreover,
in democratic systems of government in which checks and balances result
in the imposition of restraints by one branch of government on another,
there is no separation that is absolute.101 The concept can be incorporated
in a constitution in different ways: it can require a more or less strict
separation of functions and personnel as well as more or less powerful
mechanisms that would allow one branch of government to enforce checks
and balances on another. In interpreting separation of powers in the South
African context, what is clear is that the Constitutional Court is reluctant to
measure the South African model against the standards of other countries or
other models of separation of powers. It is, therefore, important to recognise
that we must interpret and judge South Africa’s model of separation of
powers with our own historical experiences and political context in
mind.102 In this respect, the Constitutional Court has captured this idea
crisply in De Lange v Smuts NO and Others when Ackermann J wrote as
follows:
I have no doubt that over time our courts will develop a
distinctively South African model of separation of
powers, one that fits the particular system of government
provided for in the Constitution and that reflects a
delicate balancing, informed both by South Africa’s
history and its new dispensation, between the need, on
the one hand, to control government by separating
powers and enforcing checks and balances, and, on the
other, to avoid diffusing power so completely that the
government is unable to take timely measures in the
public interest.103
The Constitutional Court has previously held that although there is no
explicit reference or mention of separation of powers in the Constitution, it
is implicit in the Constitution and is of equal force as an express
constitutional provision.104 However, this apparent omission must be read
against the structure of the Constitution which clearly makes provision for
the separation of powers in terms of its institutional and substantive
arrangements.105 We can infer the implicitness of the doctrine in the
Constitution from the manner in which governmental power is actually
distributed primarily between the legislative, the executive and the judicial
branches of government. Other provisions in the Constitution also support
this implicit inclusion of the separation of powers doctrine. These
provisions include the regulation of the distribution of functions; the
identification of the appropriate personnel to perform the functions; and,
more generally, the framework of control and interaction between the
branches of government and the personnel therein. To demonstrate the
substance of this implicit doctrine, we discuss the methods by which
separation of powers manifests in the Constitution below.

COUNTER POINT
Does the legislature in South Africa in fact hold
the executive accountable?
In Certification of the Constitution of the Republic of South
Africa, 1996,106 the Constitutional Court had to deal with
arguments that the South African Constitution, which
provides for members of the executive also to be members
of legislatures, contravened the principle of the separation
of powers. The reason for this was that it did not allow for a
complete separation of personnel between the legislature
and the executive as members of the Cabinet remain
members of the legislature. By virtue of their positions,
Cabinet members are thus able to exercise a powerful
influence over the decisions of the legislature. In rejecting
this criticism the Constitutional Court noted that there is
more than one model of separation of powers and stated
that:
While in the USA, France and the Netherlands members of the
executive may not continue to be members of the legislature, this is
not a requirement of the German system of separation of powers.
Moreover, because of the different systems of checks and balances
that exist in these countries, the relationship between the different
branches of government and the power or influence that one
branch of government has over the other, differs from one country
to another. The principle of separation of powers, on the one hand,
recognises the functional independence of branches of
government. On the other hand, the principle of checks and
balances focuses on the desirability of ensuring that the
constitutional order, as a totality, prevents the branches of
government from usurping power from one another. In this sense it
anticipates the necessary or unavoidable intrusion of one branch
on the terrain of another. No constitutional scheme can reflect a
complete separation of powers: the scheme is always one of partial
separation. In Justice Frankfurter’s words, ‘[t]he areas are partly
interacting, not wholly disjointed’. … As the separation of powers
doctrine is not a fixed or rigid constitutional doctrine, it is given
expression in many different forms and made subject to checks
and balances of many kinds. It can thus not be said that a failure in
the [final Constitution] to separate completely the functionaries of
the executive and legislature is destructive of the doctrine. Indeed,
 the overlap provides a singularly important check and balance on
the exercise of executive power. It makes the executive more
directly answerable to the elected legislature.107

It is unclear whether this view of the Constitutional Court

has proven to be correct. Although – as we will see – the
executive is in theory accountable to the legislature, in
practice this accountability can seem illusory. This is
because the members of the majority party in the
legislature are required to hold accountable the members
of the executive who are also, more often than not,
members of the leadership of the political party to which
the majority of members of the legislature belong. It is not
always easy for the members of the legislature to hold the
executive to account when this would require them to
challenge the authority of the leaders of the political party
to which they belong. This difficulty is further exacerbated
by the fact that members of the legislature are not
individually elected. Because of the electoral system in
operation in South Africa, they depend for their election to
the legislature on the leadership of the party to which they
belong.

2.3.3.1 The legislature

A strict version of the separation of powers doctrine requires the creation of
a separate legislature with its own personnel empowered to exercise its
powers independently from the other branches of government.108
Chapter 4 of the Constitution creates a slightly less strict separation
between the legislature and other branches of government. As far as a
separation of functions is concerned, the Constitution vests the national
legislative authority in Parliament 109 which consists of the National
Assembly (NA) and the National Council of Provinces (NCOP). Chapter 4
also determines that the exercise of legislative authority, broadly speaking,
entails the power to make laws. This includes amending the Constitution,
making general laws as well as the power to assign or delegate Parliament’s
legislative powers.110 When Parliament exercises its legislative authority, it
is only constrained by the fact that it must act in accordance with and within
the limits of the Constitution.111 Chapter 4 also specifies in whom the
powers to legislate vest. These powers are conferred on members of the
legislature who comprise members of the NA 112 and members of the
NCOP.113 In their capacity as Members of Parliament, the Constitution
empowers both members of the NA as well as members of the NCOP
respectively to regulate their own processes.114 Closely related to this
power, the Constitution confers on the members of both Houses
parliamentary privilege for all speeches made in Parliament and its
committees.115 We will discuss the content and limits of these powers and
privileges in chapter 4 of this book.
However, the Constitution does not provide for a strict separation of
powers between the legislature and the executive. First, while it establishes
Parliament as the distinct legislative branch with its particularised function
of law making and its own personnel, the Constitution also makes provision
for the involvement of the executive in the performance of the legislative
functions.116 Apart from being allowed to introduce legislation in the NA,
members of the executive are given the power to develop and implement
policy, as well as to prepare and initiate legislation.117 In addition to this,
the executive enjoys limited law-making powers in that it is empowered to
make subordinate legislation, a power usually conferred on the executive in
the empowering legislation.118
Second, there is an overlap in personnel between the legislature and the
executive: apart from the President and a maximum of two other members
of Cabinet, all members of the executive are also required to serve as
members of the NA.119 This connection between the legislature and the
executive can be seen simply as being rooted in and a continuation of the
Westminster tradition of parliamentary government as discussed above. It
can be argued that this overlap of the personnel in the legislature and the
executive should be judged in light of the injunction in Constitutional
Principle VI that there be checks and balances between the branches.
Viewed thus, the close involvement of the executive in the legislative
process could be argued to serve the purpose of promoting efficiency and
accountability between these two branches, especially considering that
governing has and continues to become more and more complicated with an
ever-increasing need for regulation. Members of Parliament do not always
have the expertise to make complex decisions on specialised topics. They
therefore rely on the executive to formulate policy and to translate policies
into draft legislation that is then scrutinised by the legislature. Where the
members of the executive and members of the legislature overlap, this
process (so it is argued) will run more smoothly, improving the efficiency of
both the legislature and the executive.

COUNTER POINT

Does South Africa’s electoral system weaken the

power of the legislature?
The electoral system in force in South Africa requires that
political parties compile electoral lists from which members
of the NA and provincial legislatures are then drawn after
an election. Some argue that this system weakens the
legislature in relation to the executive. This is because the
leaders of the majority party, who will often also be
members of the executive, may have a decisive say in who
appears on the party’s election lists. According to this
argument, members of the majority party in the legislature
may be reluctant to hold the executive to account – they
have to safeguard their position in the legislature and they
have to respect party discipline which requires strict
adherence to the dictates of the party. Such members of
the legislature may even bend over backwards to
implement the legislative programme of the executive. This
weakens the system of checks and balances that goes
hand in hand with any effective system of separation of
powers. Moreover, it is often argued that in a modern state
in recent times, the legislature has declined in political
 influence in comparison to the executive which ‘has
burgeoned in size, influence over the legislature and power
over the citizenry’.120 This has turned the legislature into
an ineffective body in relation to the executive whose
members also dominate the legislature and help to
emasculate it.
However, it is unclear whether a change in the electoral
system would automatically strengthen the separation of
powers and improve the ability of the legislature to hold the
executive accountable. It has been pointed out that at the
local government level half the municipal councillors are
not elected via the electoral list system, but rather in
constituencies. This has not necessarily improved
accountable and responsive government. According to this
view, merely changing the electoral system will not change
much. Unless the power of the leaders of political parties to
decide who is nominated to represent them in
constituencies is weakened, the power of political leaders
who serve in the executive over the Members of
Parliament who are their juniors in the political party will not
be broken. How can even independently elected members
of the legislature hold the executive accountable if they
know that they will only be renominated as a candidate in a
specific seat to contest the election on behalf of the
majority party if they do not upset the leadership of the
party? 121

The Constitutional Court has had occasion to consider questions about the
power of the executive to interfere with the law-making functions of the
legislature in the important early Constitutional Court judgment of
Executive Council of the Western Cape Legislature and Others v President
of the Republic of South Africa and Others.122 This case involved a
challenge to provisions in an Act of Parliament which delegated powers to
the President, allowing him to amend the Local Government Transition Act
123 by proclamation. The Constitutional Court readily accepted that in a
modern society, the act of governing would require some level of delegation
of law-making power to the executive. Chaskalson P, writing the majority
judgment, wrote as follows:
In a modern state detailed provisions are often required
for the purpose of implementing and regulating laws,
and Parliament cannot be expected to deal with all such
matters itself. There is nothing in the Constitution which
prohibits Parliament from delegating subordinate
regulatory authority to other bodies. The power to do so
is necessary for effective law-making. It is implicit in the
power to make laws for the country and I have no doubt
that under our Constitution parliament can pass
legislation delegating such legislative functions to other
bodies.124
However, in this case, the delegation in question was found to be
unconstitutional. In coming to this decision, the judges of the Court
delivered several judgments, all concurring that the delegation was invalid
but for different reasons. A common thread, though, among the judgments
was the fact that while delegation of legislative power is indeed
permissible, the doctrine of separation of powers demands that there be
limits to the nature or the extent of the power to be delegated by
Parliament to the executive. It was with respect to the determination of the
extent or even the factors to be taken into account that the judges failed to
reach agreement.125 However, in spite of such disagreement, all the judges
concurred on the point that Parliament could not delegate its plenary powers
to make or amend a statute to the executive branch. By attempting to do so,
Parliament had contravened the separation of powers principle inherent in
the structure of the Constitution.

2.3.3.2 The executive

Chapter 5 of the Constitution vests executive authority in the President 126
who is both Head of State and head of the national executive.127 The
Constitution provides a broad definition of the scope of the executive
function. In terms of the Constitution, the executive is responsible for the
development, preparation and implementation of national policy and
legislation as well as for co-ordinating the functions of state departments
and administration.128 More generally, the executive is responsible for the
execution and implementation of law, policy and administration.
In the President’s capacity as Head of State and head of the national
executive, he or she is duty-bound to uphold and defend the Constitution as
the supreme law of the Republic.129 In terms of the Constitution, the
President exercises executive authority together with the Cabinet which
comprises the Deputy President and Ministers.130 The President as head of
the executive has the power to appoint and dismiss the other members of
the Cabinet who serve at the President’s pleasure.131 Although enjoying
the power to select the Cabinet of his or her own choice, the President is
constrained by provisions of the Constitution that require him or her to
select all but two members of the Cabinet from the NA.132
While the executive function is undoubtedly an expansive one and has
significant powers, these powers must be viewed in light of other
constitutional provisions that place the executive under the scrutiny of
Parliament. In particular, the Constitution provides that members of the
Cabinet are accountable individually and collectively to Parliament.133
Although the accountability is to ‘Parliament’ as a whole, section 55(2)
affirms that, in effect, this power resides with one of the two Houses, the
NA.134 Cabinet members must also provide full and regular reports
concerning matters under their control.135 Beyond this, the Constitution
confers on the NA the ultimate checking power, namely the powers to
remove or recall the executive. These powers, on the one hand, permit the
NA to remove the entire Cabinet or only the Deputy President and
Ministers by way of a vote of no confidence by a majority of the members.
This is essentially a political power where the majority of members of the
NA have lost confidence in the Cabinet or in the President.136 On the other
hand, these powers also permit the NA to remove the President by way of a
two-thirds vote by the members where the President is found to have
violated the Constitution or the law, engaged in serious misconduct or when
she or he is found to be no longer able to perform his or her functions of
office. This is essentially the power of impeachment.137

2.3.3.3 The judiciary

Unlike the relationship between the executive and the legislature, there is an
absolute separation in personnel and (arguably) 138 also in powers between
the legislature and executive on the one hand and the judiciary on the
other.139 This is the bedrock principle of the separation of powers doctrine
in a constitutional state. Thus, Chapter 8 of the Constitution vests judicial
authority in the courts,140 establishes a hierarchy of courts comprising the
Constitutional Court, the Supreme Court of Appeal (SCA), the High Court
of South Africa and the magistrates’ courts,141 and establishes the
Constitutional Court as the apex court in all matters.142
The primary function of the courts is the adjudication of legal disputes,
including those that require the interpretation and application of the
Constitution.143 For present purposes, our primary focus is on courts’
constitutional jurisdiction, in particular the courts’ powers of judicial
review.144 As discussed above, the essence of judicial review is that it
empowers the courts to declare as constitutionally invalid any law or
conduct found to contravene the Constitution. The legislation or actions
declared invalid in this way will have no legal force or effect. This means
that the courts – with the Constitutional Court at the apex – have enormous
power to check the exercise as well as the abuse of power by the other two
branches of government. Unlike the US Constitution where it took the
Supreme Court’s own doing to assert its powers of judicial review, the
South African Constitution clearly makes provision for judicial review in
several ways. This includes specifically conferring on the courts, including
the High Court of South Africa and the SCA, the power to declare law or
conduct to be invalid to the extent that such law or conduct is inconsistent
with the Constitution.145
The Constitution also provides for the appointment of judges. Owing to
the important role played by the courts in enforcing the Constitution, the
process of the appointment of judges is carefully detailed and regulated by
the Constitution.146 In particular, the Constitution makes provision for
structures and procedures for the appointment of judges that involve all
three branches of government and other relevant bodies and organisations
through the involvement of the Judicial Service Commission (JSC).147 A
major part of the reasoning underlying the need to include such detailed
provisions and procedures for the appointment of judges is the need to
secure the independence of the judiciary.
Judicial independence is a fundamental concept of constitutionalism in
as far as the functioning of courts is concerned and is a pivotal requirement
for the effective functioning of the separation of powers doctrine. This is
evident in the manner in which the Constitution provides for it. The
Constitution demands that the courts, in the exercise of their judicial
authority, shall be independent and subject only to the Constitution and the
law which they must apply impartially and without fear, favour or
prejudice.148 As a safeguard for the independence of the courts, the
Constitution creates a prohibition against interfering with the functioning of
the courts that applies to everyone, including other branches and organs of
state.149 In addition to this, the Constitution places a positive duty on
organs of state to take measures to assist and protect the courts in ensuring
their independence, impartiality, dignity, accessibility and effectiveness.150
These constitutional provisions seek to protect an important element of
independence, namely the institutional independence of the courts. In this
respect the Constitutional Court in South African Association of Personal
Injury Lawyers v Heath and Others made the point as follows:
The separation of the judiciary from the other branches
of government is an important aspect of the separation of
powers required by the Constitution, and is essential to
the role of the courts under the Constitution … Under
our Constitution it is the duty of the courts to ensure that
the limits to the exercise of public power are not
transgressed. Crucial to the discharge of this duty is that
the courts be and be seen to be independent.151
The other important element of judicial independence relates to the personal
independence of judges. This is of crucial importance if they are to perform
their functions with impartiality and without fear, favour or prejudice. The
Constitution provides for such independence by way of guaranteeing the
judges’ security of tenure,152 as well as their salaries and benefits which
may not be reduced as long as they remain in office.153
The judiciary, like the other branches, is subject to important checks on
its power. Judges may be removed from office before the end of their
designated tenure where they are proven to be suffering from incapacity, or
they have been found guilty of gross incompetence or gross misconduct.154
The process for the removal of a judge entails the JSC conducting an
investigation and then making a finding on one of the grounds previously
mentioned.155 Thereafter, the matter would come up for the consideration
of the NA which must adopt a resolution supported by two-thirds of all its
members ordering the removal of the judge in question. Where such a
resolution is successfully passed, the President is then obliged to effect the
removal of the judge in question.156
Table 2.2 The manner in which checks and balances are effected
by each branch of government on the others

Checks Legislature Executive Judiciary

Legislature The executive checks The judiciary checks

the legislature by: the legislature by:
• developing and • invalidating laws
implementing policy enacted by the
• preparing and legislature that do
initiating legislation not comply with the
• making subordinate Constitution
legislation • ensuring the
• assenting to Bills legislature complies
passed by the with the procedural
legislature. requirements
prescribed in the
Constitution.
 Checks Legislature Executive Judiciary

Executive The legislature checks The judiciary checks

the executive by: the executive by:
• requiring members • invalidating acts by
of the executive to members of the
provide full and executive that do
regular reports not comply with the
concerning matters Constitution
within their control • ensuring that the
• appointing the executive fulfils its
President constitutional
• removing or recalling obligations diligently
national executive and without delay.
members
• approving the
extension of states
of emergency.

Judiciary The legislature checks The executive checks

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

2.3.4 The counter-majoritarian dilemma

In a constitutional democracy, like that established by the South African
Constitution, the constitution and not parliament is supreme. The judiciary
is independent and empowered to review and set aside the actions of the
other two branches of government. The judiciary thus necessarily wields
enormous power even though its members are not democratically elected.
Although this is a necessary result of the particular system of separation of
powers and judicial review adopted by the drafters of the South African
Constitution, this system raises many conceptual and practical difficulties.
A system which affords the power of judicial review to courts and thus
permits an unelected judiciary (which is arguably the least accountable
branch of government) to declare unconstitutional and invalid laws made
and actions taken by democratically elected and accountable members of
the legislature and executive can appear to be anti-democratic.
It is true that judicial review is an institution that is generally accepted as
being of central importance to the South African constitutional project.
However, judicial review, rather than serving to answer or resolve important
constitutional questions, raises many of its own that go to the heart of our
understanding of democracy and separation of powers. For example, 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 a majority? 157 How is it possible
that the judiciary can substitute its own decision for that of the executive
when declaring a particular government policy to be unreasonable, even in
instances where the executive has consulted widely? 158 What makes the
decision of a few unelected judges carry more weight than the choices of
the majority?
These questions are commonly referred to as the counter-majoritarian
dilemma or difficulty. The essence of the dilemma is that judicial review,
while recognised as having a legitimate purpose in the main, involves the
courts taking undemocratic decisions that often go against the popular
will.159 The obvious underlying apprehension is that while the
constitutional system may be founded on democratic principles and
practices, judicial review allows for the democratic will to be displaced by
unelected and seemingly unaccountable judges.
 With the US constitutional system being rooted in constitutional
supremacy while making no explicit provision for judicial review, it is not
surprising that the institution of judicial review has, for a long time, been
the subject of much controversy among US constitutional law scholars.160
At its core, the enduring controversy around judicial review relates to
concerns regarding the nature and extent of the power that it places in the
hands of an unelected judiciary and that allows judges to make decisions
with overtly political consequences and to encroach on the domain of the
other branches. These controversies have led to much debate on the precise
nature of the democratic curtailment and the separation of powers issues
raised by judicial review and how to resolve them or otherwise account for
them as being somehow aligned with democracy.161 In the main, attempts
to account suitably for counter-majoritarianism have elicited three main
types of responses:
• Some view judicial review as being a severe constraint on the
participation of citizens in political decisions affecting them and, as such,
see judicial review as being irreconcilable with the ideals of majoritarian
democracy.162
• Others downplay the significance of the difficulties judicial review
poses. They instead regard encroachments occasioned by judicial review
as contributing to the democratic process.163
• Yet others attempt to establish a workable interpretative theory in terms
of which judicial review can be justified as legitimising judicial
interventions in a manner that contributes to the attainment of
substantive democratic ends.164
While we must concede that most of the debates have been conducted in a
US context, we must ask whether similar counter-majoritarianism concerns
arise in the South African context, particularly in light of the fact that our
Constitution clearly makes provision for judicial review. The short answer
to this question must be an unqualified yes. We will explore why this is the
case below.
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, apart from directly answering the question of the constitutional
basis for judicial review, such fact alone does not account for why we
should accept judicial review as a legitimate feature of South Africa’s
democracy. Because judicial review operates in essentially the same way
irrespective of the jurisdiction and tends to result in the curtailment of
democracy in a generalised sense, it will also be an issue in South Africa.
Of particular interest, however, in the South African context, is the question
of how 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. In other words, while the Constitution
may provide for judicial review, it is unable to determine in advance how
judges will use the power of judicial review. Because 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.165 Bearing this in mind, an important question then becomes
how society safeguards against judges using their powerful positions to
advance their own political, religious or moral interests. Put differently,
how do we as society guarantee that judges, while performing the function
of judicial review, are, in fact, enforcing the Constitution rather than simply
imposing their own will or morality on the majority?

COUNTER POINT

Does public acceptance of a court’s decision as

legitimate suffice to address counter-
majoritarianism concerns?
Let us take a moment to consider the case of
Makwanyane, the Constitutional Court decision that struck
down the death penalty. This matter resulted in the judges
of the Constitutional Court handing down 11 different
concurring decisions, all of whom determined that the
continued use of the death penalty was not in keeping with
the letter and spirit of the Constitution. This decision was in
stark contrast to the prevailing majority or popular
sentiment that the death penalty was in keeping with public
morality and the demands of a crime-riddled, divided
society.166 In capturing the prevailing public attitudes of
the majority and their influence on the judicial review,
Chaskalson P opined as follows:
The Attorney General argued that what is cruel, inhuman or
degrading depends to a large extent upon contemporary attitudes
within society, and that South African society does not regard the
death sentence for extreme cases of murder as a cruel, inhuman or
degrading form of punishment. It was disputed whether public
opinion, properly informed of the different considerations, would in
fact favour the death penalty. I am, however, prepared to assume
that it does and that the majority of South Africans agree that the
death sentence should be imposed in extreme cases of murder. The
question before us, however, is not what the majority of South
Africans believe a proper sentence for murder should be. It is
whether the Constitution allows the sentence.

Public opinion may have some relevance to the enquiry, but in

itself, it is no substitute for the duty vested in the Courts to
interpret the Constitution and to uphold its provisions without fear
or favour. If public opinion were to be decisive there would be no
need for constitutional adjudication. The protection of rights could
then be left to Parliament, which has a mandate from the public,
and is answerable to the public for the way its mandate is
exercised, but this would be a return to parliamentary sovereignty,
and a retreat from the new legal order established by the 1993
Constitution. By the same token the issue of the constitutionality of
capital punishment cannot be referred to a referendum, in which a
majority view would prevail over the wishes of any minority. The
very reason for establishing the new legal order, and for vesting the
power of judicial review of all legislation in the courts, was to
protect the rights of minorities and others who cannot protect their
rights adequately through the democratic process. Those who are
entitled to claim this protection include the social outcasts and
marginalised people of our society. It is only if there is a
willingness to protect the worst and the weakest amongst us, that
all of us can be secure that our own rights will be protected.
 This Court cannot allow itself to be diverted from its duty to act as
an independent arbiter of the Constitution by making choices on
the basis that they will find favour with the public.167

Interestingly, despite public opinion opposing the abolition

of the death penalty, South Africans nevertheless accepted
the Constitutional Court decision as legitimate. The
question still remains, however, whether public acceptance
of a decision as legitimate alone suffices to address the
counter-majoritarianism concerns raised above. We would
argue that it does not for at least three reasons:
• First, public acceptance of a court decision need not
necessarily mean that judges have acted in a manner
that actually promotes constitutionalism or democracy.
• Second, what the public is willing to accept at any given
time does not necessarily reflect what is acceptable in a
democratic constitutional state.
• Third, and most importantly for us presently, public
acceptance takes us no closer to providing us with a
sound theoretical basis that justifies why or even how
judges should exercise powers of judicial review. In
other words, for judicial review to be palatable and
address the concerns raised by the counter-majoritarian
dilemma, we need to have some acceptable theoretical
basis that assures us that when judges decide a matter,
they are applying criteria of sufficient determinacy to
enable judges of different political, religious or moral
predispositions to arrive at generally consistent results
when faced with similar facts or circumstances.

In light of the above, an obvious question that then bears asking is why
include judicial review in South Africa’s constitutional system if it poses so
many difficult conceptual and practical questions. A better question,
though, may be what the justification is for the inclusion of judicial review
in South African constitutionalism taking into account the curtailment of
democracy it necessarily entails. Before putting forward some arguments in
support of the inclusion of judicial review, it is necessary to concede that
due to the nature of judicial review, it can never be fully reconciled with a
purely majoritarian concept of democracy.168 The nature of the
adjudicative function and the powers exercised therein simply do not lend
themselves to being exercised by a plurality of the population in a
democratic society. Therefore, if we accept that the judiciary is to play a
legitimate part in upholding the Constitution, then we must be able to
justify, in a reasoned manner, why important decisions affecting millions
should be left in the hands of a relatively few unelected judges whose
decisions may not necessarily be wiser, more principled or moral that those
of the majority in a democracy. Despite inherent counter-majoritarian
concerns, there are several good arguments or justifications that have been
put forward in support of judicial review. We will discuss a few of these
below:
• While judicial review does tend to diminish democracy from a
majoritarian point of view, democracy, when viewed substantively and
especially in a plural political society, is never simply majority rule.
While the elected representatives of the political majority must exercise
political power in a democratic society, this does not necessarily give the
majority a blank cheque to govern in whatever way it desires. There are
in place mechanisms that regulate and limit the exercise of power in a
way that seeks to secure the welfare of all members of a particular
political community. Those subscribing to this view would argue that
where all people enjoy the same rights in a democracy, all people are
entitled to be treated as equals irrespective of whether they are part of the
majority or not.169 So understood, democracy entails much more than
conferring power on a particular majority on any given day. It also
necessarily entails finding a balance between enabling those in the
majority to govern and limiting the things that they can do while in
power, especially where such power can be used to violate the rights of
others or undermine the very nature of the democracy.
• Another argument in support of judicial review holds that the judiciary is
ideally positioned to decide on disputes and matters of principle. The
reasons for this are the specialised nature of judges’ adjudicative
 expertise, the judiciary’s detached institutional positioning relative to the
other democratically elected branches and its entrenched independence.
According to those who hold this view, the courts are institutionally
stronger and better positioned than the other two branches for purposes
of protecting rights and upholding democratic principles as they do not
have to pander to the demands that may be placed on the other branches
by an electorate.170
• Another argument in support of judicial review, related to the preceding
one, is that the courts can be seen as a forum that can actually enhance
democracy, particularly deliberative democracy. Those subscribing to
this view argue that the courts provide an important platform where
citizens may challenge the decisions or actions of their elected
representatives. In effect, citizens can enter into a structured dialogue
with elected representatives through the courts.171

COUNTER POINT

Counter-majoritarianism opening up the

possibility of a non-technical ethics
Van der Walt and Botha have a distinct view on the
counter-majoritarian difficulty and approach the matter from
a theoretically more critical perspective: 172
We wish to make clear from the outset that we have no solution to
the counter-majoritarian problem. We believe it is irresolvable …
[However,] the problem must be addressed. Irresolvable problems
are, after all, the only ones we can address. Resolvable problems
are not real problems. Resolvable problems are fake problems,
temporary technical hiccups, often spectacularly disguised as
crises. The counter-majoritarian problem and the problem of
significant social dissent are not technical hiccups. They constitute
aporias. They allow no way through. They confront us with the
impossible. Paradoxically, however, this impossibility opens up the
possibility of social deliberation that would exceed technical
procedure. It opens up the possibility of a non-technical ethics. It
gives politics a chance.
 In this view, although the counter-majoritarian problem
cannot be resolved, it can tentatively be addressed by
admitting that there will always be a tension between the
demand for democratic accountability on the one hand and
the demand for judicial review on the other. How these
demands are balanced against each other in a given case
will depend on many factors and may well change over
time. This approach is often associated with a view of the
Constitution as flexible and open-ended.

These arguments briefly set out above merely represent some of the views
that have been put forward in an attempt to justify or account for the
inclusion of the institution of judicial review in a democratic system of
government. In and of themselves, they can be challenged and can be found
wanting in as far as completely dispelling accusations that judicial review
does tend to curtail or subtract from majoritarian democracy. However,
judging by the acceptance of judicial review in some democratic societies,
including South Africa, we can conclude that there is some level of
acceptance of the idea that there should be a branch of government that
must be tasked with the role of interpreting and upholding the constitution
and the rights of all citizens. Put differently, 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 such as inclusiveness, broad representativity,
accountability and transparency. It has been suggested that instead of
glossing over judicial review’s democratic deficit, there is a need to think of
constitutions such as South Africa’s as being mixed constitutions. The
mixture in this sense is that such constitutions, although grounded in
democratic principles and practice by necessity, also include an anti-
democratic practice such as the inclusion of judicial review.173
Figure 2.4 The counter-majoritarian dilemma

2.4 The rule of law

An elemental feature of South African constitutionalism is the principle of
respect for the rule of law. The rule of law is often equated with the German
principle of the Rechtsstaat discussed above, but although there are many
similarities between the two concepts, the rule of law is arguably a more
limited concept than the Rechtsstaat. The two terms are nevertheless often
used interchangeably and below we consider whether the inclusion of the
rule of law as a founding value in the South African Constitution should
require us to view it as being akin to the Rechtsstaat principle known from
German constitutional law. The importance of the rule of law in South
African constitutional law is clearly demonstrated by the fact that the rule
of law is a founding value entrenched in section 1 of the Constitution.
However, there is some difference of opinion about the scope and content of
the rule of law and this is the subject of much debate among constitutional
law scholars.174 Apart from being a value, the rule of law is also
recognised as an enforceable principle on which the exercise of public
power and legislative acts can be challenged. In this section we briefly
consider the rule of law in order to detail its historical understanding under
apartheid and then its development and how it has been received by the
courts in the constitutional era.

2.4.1 A brief history of the rule of law

To understand the evolution of the rule of law it is is helpful to consider an
early formulation of the concept put forward by Dicey who is considered to
be the earliest proponent of the principle of the rule of law.175 According
to Dicey, the rule of law comprises three main principles:
• First, since the law is supreme, public power can only be exercised in
terms of authority conferred by law and no one may exercise public
power arbitrarily.
• Second, everyone is equal before the law, the law must be applied
equally to all persons irrespective of their status and all must be subject
to the jurisdiction of the ordinary courts.
• Third, the ordinary courts are responsible for enforcing the ordinary laws
of the land, the common law and statute in a manner that protects the
basic rights of all so that these laws function as a constitution. (Recall
that Dicey wrote about the British constitutional system in which there
was, and there still is, no written constitution in place.176)
Broadly speaking, the Diceyean conception of the rule of law has remained
an influential source even though substantially different interpretations and
applications of the rule of law have developed, ranging from the formal to
the substantive.
Figure 2.5 The Diceyean conception of the rule of law
The question of whether the rule of law was fundamentally respected during
the apartheid era is a controversial one. The discussions about this issue
highlight the fact that respect for the rule of law on its own is not sufficient
to protect the basic rights of individuals in a society. Although it later
emerged that the apartheid state had also flouted the very laws it claimed to
respect by sanctioning in an explicit or implicit way the extrajudicial killing
and torture of political opponents, the apartheid government maintained that
it respected the rule of law because it governed in terms of laws duly passed
by Parliament. However, in as much as the apartheid government did so, it
was only in the formal sense that it could ever have been said to respect the
rule of law. The apartheid government relied to a large extent on the law to
enforce unjust and oppressive policies fashioned under the legislative
freedom conferred by parliamentary supremacy. It is well documented how
racist and violent laws were crafted, enacted, executed and enforced
through the combined force of state organs, including the courts, acting in
unison to bring about the NP’s mission of an exclusive white state.177 The
inherent unjustness and inequality of the system at the time, however, did
not prevent some from still speaking of the system as being premised on the
basis of the rule of law.178 This equation of ‘rule of law with rule by law’
179 represents a formalistic understanding of the importance of law as an
instrument of governance rather than a substantive understanding that also
concerns itself with the content of the laws.180 Therefore, the
understanding of the rule of law under apartheid was mostly formalistic.
This means that as long as there was a legislative provision enabling
governmental conduct, then the enforcement of such law was generally
considered to be lawfully warranted.181 Such an approach clearly
emasculated the concept of the rule of law and subjected it to much
justifiable criticism.

COUNTER POINT

The Law of Lagos

In 1960, the NP was consolidating its rule in South Africa
via the formation of an exclusive white republic rooted in
parliamentary sovereignty and a narrow, formal conception
of the rule of law. In numerous other parts of the African
continent the period of decolonisation and independence
was just commencing. In an apparent response to these
changes from the authoritarianism that accompanied
colonial rule, a movement developed that was driven by
the International Commission of Jurists (ICJ). The ICJ
sought to promote the rule of law in countries undergoing
the process of decolonisation. In 1961, the ICJ met in
Lagos, Nigeria at a conference on the rule of law to
deliberate on the role of the rule of law in Africa. At the end
of that conference the delegates produced what was to
become known as the Law of Lagos. We reproduce the
Law of Lagos below so as to contrast the evolving
conception or approach to the rule of law internationally to
that developing in South Africa at the time.
The Law of Lagos

Having discussed freely and frankly the rule of law with particular
reference to Africa, and
Having reached conclusions regarding human rights in relation to
government security, human rights in relation to aspects of
criminal and administrative law, and the responsibility of the
judiciary and of the Bar for the protection of the rights of the
individual in society,

NOW SOLEMNLY

Recognises that the rule of law is a dynamic concept which should

be employed to safeguard and advance the will of the people and
the political rights of the individual and to establish social,
economic, educational and cultural conditions under which the
individual may achieve his dignity and realise his legitimate
aspirations in all countries, whether dependent or independent,

Reaffirms the Act of Athens and the Declaration of Delhi with

special reference to Africa, and

Declares:

1. That the principles embodied in the Conclusions of the

Conference which are annexed hereto should apply to any
society, whether free or otherwise, but that the rule of law
cannot be fully realised unless legislative bodies have been
established in accordance with the will of the people who have
adopted their constitution freely;
2. That in order to maintain adequately the rule of law all
governments should adhere to the principle of democratic
representation in their legislatures;
3. That fundamental human rights, especially the right to
personal liberty, should be written and entrenched in the
constitutions of all countries and that such personal liberty
should not in peacetime be restricted without trial in a court of
law;
4. That in order to give full effect to the Universal Declaration of
Human Rights of 1948, this Conference invites the African
governments to study the possibility of adopting an African
Convention of Human Rights in such a manner that the
Conclusions of this Conference will be safeguarded by the
creation of a court of appropriate jurisdiction and that
recourse thereto be made available for all persons under the
jurisdiction of the signatory states;
5. That in order to promote the principles and the practical
application of the rule of law, the judges, practising lawyers
and teachers of law in African countries should take steps to
establish branches of the International Commission of Jurists.
 This Resolution shall be known as the Law of Lagos.182

Although much could be said about the Law of Lagos, we

will limit ourselves to two comments that highlight important
substantive advances in the way the rule of law is
conceived here. First, the rule of law is conceived as a
‘dynamic concept’. But what was meant by this? Why was
it important to isolate the rule of law, draw attention to it
and seek to entrench it as an overarching principle
applicable to any society, free or otherwise? From the
proceedings of the conference, it seems that against the
background of colonialism and the demands of
decolonisation, there was a recognition of the dangers
presented by a narrow and formalistic conception of the
rule of law. As such, the Law of Lagos sought to transcend
this by presenting the rule of law as a positive rights-
reinforcing principle that promoted not only political rights,
but one that also self-consciously recognised its role as a
significant contributor to the attainment of the socio-
economic well-being of people. Second and most
significantly, the rule of law was here closely associated
with the ideas of the protection and promotion of human
rights and democracy rather than simply being seen as a
guarantee of the supremacy of the law and the equal
application of the law. This latter view was being
demonstrated in South Africa and other colonies where it
was deemed to be compatible with laws that were patently
unjust and unequal.

2.4.2 The rule of law under the 1996 Constitution

In spite of its chequered history in pre-democratic South Africa, the rule of
law has assumed a pre-eminent role in the current constitutional
dispensation. As already mentioned above, the rule of law, alongside the
supremacy of the Constitution, is enshrined as a founding value in
section 1(c) of the Constitution. This inclusion of the rule of law as a
founding value in the Constitution may at first glance seem peculiar and
unnecessary. This is so because the Constitution also establishes the
supremacy of the Constitution and contains an enforceable Bill of Rights.
The provisions of the Bill of Rights provide more extensive and far-
reaching protection against the abuse of power and the infringement of
human rights than could ever be afforded by the principle of the rule of law.
We may therefore ask whether we should read or interpret this coupling to
have more meaning than mere drafting convenience. In other words, should
the declaration of the rule of law as a value alongside that of constitutional
supremacy influence our understanding of the rule of law in South Africa?
Alternatively, is the manner in which the rule of law is captured in our
Constitution more in keeping with the Rechtsstaat idea derived from
German constitutionalism or is it closer to Dicey’s conception? To gain a
better understanding of the place of the rule of law in South African
constitutionalism, it is necessary to consider how it has been applied in
cases before the courts.
Interestingly, the rule of law continues to be an important foundational
concept in South African constitutional law. Its prominence is evidenced by
the manner in which the courts have invoked the rule of law as a
mechanism primed to limit, regulate as well as give more precise meaning
to how governmental power is exercised. As such, the rule of law has
emerged as a powerful practical principle that can be invoked before our
courts to ensure that the exercise of state power conforms to basic minimum
criteria. The rule of law, as a constitutional principle, has been invoked in
many cases where it has been raised as the basis of a constitutional
challenge against Acts of Parliament or the executive. This has occurred in
cases where the actions of the legislature or the executive were not
challenged on the basis that these actions somehow infringed on any of the
rights contained in the Bill of Rights.
An early example of such a matter was that of Fedsure Life Assurance
Ltd and Others v Greater Johannesburg Transitional Metropolitan Council
and Others.183 This matter was decided under the interim Constitution and
entailed a challenge by Fedsure to the Johannesburg local government’s
powers to levy substantially higher property rates. Fedsure initially
instituted the challenge on the basis of an alleged breach of its
constitutional right to administrative justice.
The Constitutional Court held that the powers under which the local
government acted were not administrative in nature and, therefore, could
not be tested against the constitutional right in question. Nevertheless, the
Court went on to hold that the powers exercised by local government
remained subject to the Constitution and, in particular, the exercise of such
powers was constrained by the rule of law. The Court held that the local
government was permitted only to exercise powers that it had had lawfully
conferred on it. In particular, the Court stipulated that the principle of
legality – as an incidence of the rule of law – is what determines whether
public bodies act lawfully or not. The Court made its point as follows:
The rule of law – to the extent at least that it expresses
this principle of legality – is generally understood to be a
fundamental principle of constitutional law. It seems
central to the conception of our constitutional order that
the legislature and the executive in every sphere are
constrained by the principle that they may exercise no
power and perform no function beyond that conferred
upon them by law.184 (our emphasis)
From the Fedsure case and subsequent cases it would appear that the
principle of legality has become possibly the most important and oft-
invoked principle of the rule of law.185 An obvious question at this stage
must be what the principle of legality is and why it has risen to such
prominence in our understanding of the rule of law. It is to this question that
we shall turn briefly before discussing its application in more detail below.
The principle of legality, as an incidence of the rule of law, can be
described as the notion that the exercise of public or governmental power is
legitimate and valid only where it is lawful. In other words, the principle of
legality demands that where individuals or institutions exercise public
power, those acts are binding only in as far as they are authorised by law,
notwithstanding the fact that such law may itself be challenged for its
constitutionality. The principle of legality has developed into an important
constitutional law principle in that it has general and residual
application.186 Thus understood as underlying all exercise of public power,
the principle of legality can be applied seemingly to any and all instances of
the exercise of public power which can be tested to determine whether they
conform to this principle. This idea of the generality of the principle in
constitutional law is cogently captured in the following dictum by Ngcobo J
in Affordable Medicines Trust and Others v Minister of Health and Another:
The exercise of public power must therefore comply with
the Constitution, which is the supreme law, and the
doctrine of legality, which is part of that law. The
doctrine of legality, which is an incident of the rule of
law, is one of the constitutional controls through which
the exercise of public power is regulated by the
Constitution … In this sense the Constitution entrenches
the principle of legality and provides the foundation for
the control of public power.187
As a constitutional principle deriving from the rule of law, the principle of
legality is extremely useful in that where there is no right or specific
constitutional provision, rule or principle that crisply and directly addresses
a question before a court, as was the case in Fedsure, then the principle of
legality may be readily invoked. In such an instance, the principle of
legality demands that, even where there is an enabling law in place, for an
exercise of public power in terms of such law to be legitimate, then the
body or official in question must have acted only within the limits of the
powers conferred on the body or official by the law. In other words, the act
or conduct must not be arbitrary or a demonstrable abuse of power or
discretion.
A case that clearly demonstrates this point is that of Pharmaceutical
Manufacturers. In this matter, the President had mistakenly brought into
force legislation that required the prior or simultaneous promulgation of
regulations and schedules so that it could be implemented properly.188
There being no specific rule or law permitting the President to undo an
erroneous action that he had taken lawfully in terms of powers conferred on
him by the Constitution, the Constitutional Court had to decide whether his
actions were reviewable and the basis on which this could be done. The
Court found that:
The President’s decision to bring the Act into operation
in such circumstances cannot be found to be objectively
rational on any basis whatsoever. The fact that the
President mistakenly believed that it was appropriate to
bring the Act into force, and acted in good faith in doing
so, does not put the matter beyond the reach of the
Court’s powers of review. What the Constitution
requires is that public power vested in the executive and
other functionaries be exercised in an objectively
rational manner. This the President manifestly, though
through no fault of his own, failed to do.189
The courts’ employment of the rule of law has not been limited to its appeal
to the principle of legality. The courts have also had occasion to use the rule
of law to demand that public officials not act in an arbitrary way and that
they must exercise their powers in a rational manner related to the purpose
for which the power was given.190 In Lesapo v North West Agricultural
Bank and Another, the legislative provision in question allowed for the
respondent bank to seize and sell the property of defaulting debtors without
any recourse to the courts.191 In the matter, Mokgoro J denounced the use
of public power to perform such acts and described them as self-help which
is inimical to the rule of law. In capturing the rule of law principle
forbidding self-help, Mokgoro J said the following:
Self help, in this sense, is inimical to a society in which
the rule of law prevails … Taking the law into one’s own
hands is thus inconsistent with the fundamental
principles of our law.192
Mokgoro J added further:
The Bank, as an organ of State, should be exemplary in
its compliance with the fundamental constitutional
 principle that proscribes self help. Respect for the rule of
law is crucial for a defensible and sustainable democracy.
In a modern constitutional state like ours, there is no
room for legislation which, as in this case, is inimical to a
fundamental principle such as that against self help. This
is particularly so when the tendency for aggrieved
persons to take the law into their own hands is a constant
threat.193
There are numerous other instances where a court has invoked the rule of
law as a principle in deciding cases or in its reasoning of the cases. A few
examples of such instances are as follows. The rule of law has been invoked
to demand that rules must be conveyed in a clear and accessible manner for
them to comply with the standards required by the Constitution.194 The
rule of law has, further, been invoked to challenge legislation for vagueness
and uncertainty where the provisions of the legislation in question conferred
broad discretionary powers on a Minister.195 The Constitutional Court has
also held that judicial independence and impartiality are implicit in our
understanding of the rule of law as a constitutional principle.196
Overall, the rule of law seems to occupy pride of place as a constitutional
value alongside that of constitutional supremacy. The rule of law
simultaneously operates as an independent and enforceable principle with
an important and equally useful derivative in the form of the principle of
legality. We can thus argue that the current conception of the rule of law is
one that extends beyond the formal Diceyean understanding. Judging from
the manner in which the rule of law has been invoked in our case law, it is
evident that under the rubric of the rule of law, we are now also concerned
with the impact of laws on those affected, the substantive content of laws as
well as how public officials and bodies exercise their powers even in the
face of enabling laws. In short, our conception of the rule of law under the
Constitution has evolved.

COUNTER POINT
Formal versus substantive conceptions of the
rule of law
Some commentators 197 have argued that the inclusion of
the rule of law as a founding value in the South African
Constitution may be of little effect if the rule of law is
conceptualised in a narrow way as requiring little more
than legality and rationality from law makers and state
officials acting in terms of the law. They point out that if the
rule of law exists when the principle of legality is observed,
then the apartheid government also largely observed this
principle. The fact that law was used as an instrument of
apartheid ideology would then simply show that the
principle of legality or the rule of law is by itself morally
insignificant. What matters is the content of the law – the
nature of the ideology of which the law is the instrument. It
follows, then, that the explicit commitment in the final
Constitution to the supremacy of the Constitution and the
rule of law is in itself empty. What matters is not that
commitment but that the final Constitution guarantees a list
of rights and liberties. In addition, it gives to the judiciary
the authority both to ensure that the exercise of public
power has a legal warrant and that any legal warrant is
consistent with constitutional guarantees.
However, this limited conception of the rule of law is
controversial in legal theory and was contested in legal
practice during apartheid. Lawyers who mounted
challenges to government oppression through law often
argued in court that the judiciary should read statutes in the
light of common law presumptions protecting the individual
interest in liberty and the equality of those subject to the
law. According to this view, only to the extent that a statute
explicitly requires that these interests are not to be
protected by the statute should judges countenance that
the legislature intended to subvert rather than serve the
interest of all those subject to the law in liberty and equality.
 The idea is that the commitment of the legal order to the
supremacy of the Constitution and to the principle of
legality includes constitutional, albeit unwritten,
commitments to protecting these interests. Should officials
implement statutes in ways that go beyond these unwritten
constitutional constraints, so judges should find that they
acted outside the scope of their legal authority. This latter,
more expansive, conception of the rule of law is often
referred to as a substantive conception of the principle.
The question arises whether such a substantive conception
of the rule of law is required in South Africa, given the
existence of a supreme Constitution and a justiciable Bill of
Rights which includes the right to fair administrative action.

2.5 Democracy
One of the major rallying calls informing the struggle for liberation in
South Africa was the demand of ‘democracy for all’.198 As unambiguous
an aspiration as that sounded, what it concealed was the fact that the
concept of democracy is one that can and has been described as
‘controversial’ 199 or is at the very least contested.200 The supposed
‘controversy’ underlying democracy is related to the fact that as a concept,
democracy has proven immensely difficult to define in a singular and
uncontested manner, with many writers preferring to provide their own
definitions or understandings of the word. Contributing to the supposed
‘controversy’ is the fact that the term ‘democracy’ is commonly used in
conjunction with other concepts such as ‘liberal’, ‘constitutional’ or
‘majoritarian’. Despite this supposed ‘controversy’, democracy’s pre-
eminence as one of the dominant political ideas of modern times is
unassailable. Certainly in the South African Constitution, the idea of
democracy is a prominent one that permeates virtually all aspects of the
Constitution. Beyond the Preamble, section 1 of the Constitution ushers in
democracy by declaring South Africa to be ‘a sovereign, democratic state’.
Section 1(d) builds further on this by setting out the democratic values and
principles on which South Africa is founded, namely ‘[u]universal adult
suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government, to ensure accountability, responsiveness
and openness’. While not defining what democracy means in South Africa,
the section goes a long way towards making explicit those elements of
democracy that are paramount in the South African constitutional
context.201 In this section we consider the idea of democracy and its place
in the South African constitutional system.

2.5.1 Conceptions of democracy

Although having already conceded that democracy as a concept defies
singular definition, it is nonetheless imperative that we put forward an
understanding of what democracy entails. One conception that we have
found useful, particularly in a constitutional law setting, is that put forward
by Roux who attempts to encapsulate the foundational social idea of
democracy as well as the contemporary political understanding of
democracy in practice. Roux tells us that:
[t]he core idea – that decisions affecting the members of
a political community should be taken by the members
themselves, or at least by elected representatives whose
power to make those decisions ultimately derives from
the members – is more or less settled.202
This description, while it does not seek to be comprehensive, serves as an
adequate starting point as it can be adapted to speak to various conceptions
of democracy from the perspective of the persons affected or from a
perspective that recognises that modern democracy is exercised mainly
through institutionalised politics that entails citizens electing individuals or
organisations to represent their interests. This idea of democracy is
therefore linked to the notion that the will of the people should prevail and
that people should have a say in how they are governed. It does not seek to
convey any idealised form of democracy. Instead, it seeks to convey the
foundational reason for democracy, namely that of enabling members of a
political community to act together in matters that affect them and to take
decisions collectively with respect to such matters. The fact that it also
lends itself to a variable understanding of democracy is of particular use in
studying the Constitution as the Constitution clearly embodies several
different conceptions of democracy. A study of the constitutional text will
reveal that there are several different conceptions or understandings of
democracy that can be identified, namely direct democracy, representative
democracy (such as a multiparty democracy), participatory democracy
and constitutional democracy.203 The presence of the varied conceptions
of democracy in the Constitution serves to demonstrate not only the varied
understandings of democracy, but also the centrality of democracy in
defining the type of society post-apartheid South Africa seeks to become.
We turn to discuss the different conceptions below.

2.5.2 Direct democracy

Direct democracy means a system of governance that entails direct
participation on the part of the citizenry, rather than elected representatives,
in the rule and decision making of their political community.204
Historically, direct democracy is generally regarded as the ‘purest’ form of
democracy that comes closest to achieving the rule of the people.
In the context of the modern nation-state, examples of direct democracy
are not always self-evident since most decisions are taken not by the
citizenry but by their elected representatives in legislatures. Owing to
numerous factors, not least its complex structure and internal workings, the
modern nation-state has left little room for direct democracy. Direct
democracy would, in practice, demand a vote on every piece of legislation
by every eligible member of society. Instead, prevailing democratic systems
of governance usually comprise elected legislatures whose rule is premised
on a mandate from the citizenry who periodically confer the power to
decide on their behalf to selected political organisations, such as political
parties, or individuals.
As a result of this, it seems widely accepted that direct democracy, where
it does exist, exists in a limited sense in modern democracies. That is to say,
there is virtually no modern example of a political system that operates
primarily in accordance with the basic tenets of direct democracy as
outlined above. The same is true for South Africa, save to say that there are
elements of South Africa’s conception of democracy that can be said to be
premised on ideas of direct democracy. We turn to consider these
manifestations of direct democracy in the South African constitutional
scheme below.
The Constitution makes no mention of or reference to the concept of
direct democracy in its text. However, the constitutional expression of
direct democracy is to be found in several provisions that guarantee and
recognise mechanisms for citizens to act directly in influencing decisions.
An important instance where the Constitution makes provision for direct
citizen action is by guaranteeing everyone’s right to assemble, demonstrate,
picket and present petitions peacefully and unarmed.205 In terms of this
guarantee, all citizens are free to engage to make their views known and to
seek to influence decisions affecting them unhindered subject to the
limitation that they do so unarmed and maintain the peace. As an expression
of direct democracy, this right is pivotal as it recognises that despite the
predominance of representative governance, citizens must always enjoy the
space to advance their own agendas or paths with respect to any issues that
they believe affect them as individuals or groups.206
Other expressions of direct democracy identified in the Constitution are
to be found in the provisions that allow for the executive to seek citizens’
views on a particular issue or set of issues directly through the ballot by
way of referenda.207 Although to date no referendum has been called in the
post-democratic era, this is a potentially important mechanism in as far as it
allows citizens to have an unmediated voice on a particular issue. One
criticism that can be levelled against these provisions as representing an
instance of direct democracy is that it is actually at the discretion of the
President or Premier to call the referendum. There are no mechanisms by
which the citizenry can initiate or even demand that a referendum be held,
nor are there directives or guidelines as to which matters should require a
referendum be held.

PAUSE FOR REFLECTION

To what extent does the Constitution provide for
direct democracy?
Merafong Demarcation Forum and Others v President of
the Republic of South Africa and Others 208 was a matter
brought before the Constitutional Court concerning the
manner in which the legislature had opted to deal with the
location of Merafong City. Prior to an amendment to the
Constitution Merafong City had straddled North West and
Gauteng Provinces. The issues in this case focused on
public participation and the duty of the legislature to
facilitate public involvement. Interestingly, in this matter
there had been a consultative process that allowed the
community to air their views on relocation. The majority
were opposed to the local municipality being located in the
North West Province (74% of the residents were prior to
the relocation Gauteng residents).209 However, in spite of
this opposition by a majority of the residents, the
constitutional amendment was effected and upheld by a
majority of the Constitutional Court who held that the
legislature had fulfilled its duty to facilitate public
involvement and had acted rationally in the face of
opposition.
The decision of the majority in the Constitutional Court,
while legally defensible, must be viewed against the
background of events on the ground, so to speak, within
the municipality. Building up to the decision to relocate the
municipality and subsequent to it, the community had
vociferously made their disaffection with regard to
relocation known. They had done this through public
meetings, written submissions, mass public protests,
marches and ultimately widespread civic disobedience
characterised by public violence and the destruction of
private and public property.210 Ultimately, when the matter
came before the Constitutional Court, parts of Merafong,
 particularly the township of Khutsong, had become
‘ungovernable’ and resembled a war zone as residents
refused to accept the decision to relocate the
municipality.211
This judgment raises some searching questions about
the content and limits of direct democracy in South Africa.
For example, does South Africa’s Constitution actually
entail a substantive form of direct democracy that allows
citizens to take decisions about things that affect them
directly and where those decisions are binding? Or do the
expressions of direct democracy we identify above more
accurately represent a right to be heard as seems to be the
essential holding of Merafong? Would there be any
purpose served by making provision for citizens to demand
that certain matters be subject to referenda? Does the fact
that we now live in a more technologically connected age
not present opportunities to make some advances in
making direct democracy more possible to implement?

2.5.3 Representative democracy

Representative democracy as a conception of democracy entails a system of
governance in which the members of a political community participate
indirectly through elected representatives in the governance of their
community.212 In other words, at its heart, this form of democracy
presupposes that citizens elect representatives who govern on their behalf
for a limited period of time until the next election. Political parties are often
central to this form of democracy because electoral systems require voters
to vote for political parties as opposed to individual representatives. Also,
political parties influence the choices of voters and often lead people to
elect representatives partly because of their party political affiliations.
Representative democracy, as mentioned above, has become the
predominant form of democracy in the nation-state system.213 Since the
emergence of the nation-state as a political entity that occupies a particular
geographical space and houses a sizeable population, representative
democracy has become widely accepted as the only ‘workable’ system of
democracy.214 A major reason for this is said to be that as a matter of
practicality, governance is far too complex to expect government to operate
in a fashion that takes account of each individual citizen’s viewpoint on
decisions that affect them or even simply to afford them such an
opportunity. There are multiple hurdles such as a lack of information,
geographical spread, unequal access to resources and citizen apathy among
others. Also, the sheer enormity of the task of gathering and collating all
these views has made the development of political parties or similar civic
organisations as the vehicles of representative democracy appear to be
inevitable. The result has therefore been that structurally and procedurally a
constitution is tailored towards political parties playing a pre-eminent role
in the governance of the country. It is, after all, a political party or a
coalition of political parties that forms a government.
As noted above, the presence of political parties in a system of
representative democracy has become integral to the functioning of modern
democracies. Political parties, by organising, campaigning and
electioneering, act to represent the interests of their members who will
usually share a common agenda or vision. The role of political parties is
further enhanced in South Africa by the electoral system and by strict party
discipline. Therefore, while the Constitution does not overtly regulate the
establishment, financing or activities of political parties, it does nonetheless
recognise that political parties are very much a part of the modern
democratic political system and have an important role to play in
constituting South Africa’s democracy.215
Evidence of this recognition of political parties by the Constitution is
found in certain constitutional clauses, both substantive and procedural.
These clauses make it explicit that the type of democracy contemplated by
the drafters was a representative one in which political parties have a major
role to play. For instance, according to section 1 of the Constitution, South
Africa is founded on, among other values, the democratic values of
‘[u]niversal adult suffrage, a national common voters roll, regular elections
and a multi-party system of democratic government …’ 216 The primary
organ of citizen representation is the NA that is elected to represent the
people and to ensure government by the people.217 Furthermore,
provisions relating to the composition of the NA demand that its members
must be elected in terms of an electoral system that, in general, results in
proportional representation.218 In prescribing a system of proportional
representation, the Constitution goes further by demanding that
representation of citizens through their political parties must be provided
for in the internal arrangements, proceedings and procedures of the NA.219
The High Court decision of De Lille and Another v Speaker of the
National Assembly 220 highlighted the importance of ensuring that the
citizenry is properly represented in the working of the NA. In this matter,
the Court was required to decide on the constitutionality of a decision by an
ad hoc committee of the NA to suspend a member of the NA as a form of
punishment for statements she had made before it.
In answering the question in the negative, the Court recognised the NA’s
constitutional powers to regulate its own affairs. However, the Court held
that such powers did not include the power to suspend a member for
contempt as a form of punishment.221 According to the Court, such action,
if permitted, would be inconsistent with the requirements of representative
democracy. The reason for this is that it would punish not only the member
who was found to have acted contemptuously, but also the party and the
citizens who had voted for her party. This would deprive them of their
proportionate representation in the NA.222 Although this finding was not
the main basis for the final outcome, the Court’s reasoning that connects the
the most important reason for the member being in the NA with the
electorate is important. Its importance lies in the Court’s recognising that
the NA should take into account the interests of the electorate as a whole in
the decisions it makes; it cannot simply focus on the individual concerned.
Even the rights concerning voting are clearly crafted towards a system of
representative democracy. The Constitution makes it clear that this is one of
the primary conceptions envisioned by the drafters by capturing the effect
of representative democracy in the political rights provision of the Bill of
Rights. Section 19 is an important democratic right in the sense that it
grants citizens the right to participate in various ways in the political life of
the country. Again, while not directly mentioning that this right to
participate is within a political system of representative democracy, this
idea is implicit in the way the right is framed. Section 19(1) confers on
citizens the right to make political choices. It also seems to envisage that
citizens exercise these choices within or via a party political system. Hence,
the section explicitly states that the right includes that of forming, joining or
campaigning for a political party. Section 19(2) further cements the
implicitness of the political system being that of representative democracy
by stipulating that the citizens have the right to free and fair elections.
Finally, section 19(3) adds to this by conferring on every adult citizen the
right to vote in elections, to stand for public office and to hold such office if
elected.
The courts have on several occasions pronounced on the right to vote and
its significance for democracy.223 The courts have also had occasion to
consider the relationship between the citizenry and their elected
representatives. In the main, the courts have considered this relationship
within the context of constitutional democracy. Some of the
pronouncements also serve to shed much light on how the courts view
representative democracy in South Africa. O’Regan J’s comments in
Richter v The Minister for Home Affairs and Others shed much light on the
democratic nature of and the responsibilities that characterise the
relationship between voters and their elected representatives:
The right to vote, and the exercise of it, is a crucial
working part of our democracy. Without voters who
want to vote, who will take the trouble to register, and to
stand in queues, as millions patiently and unforgettably
did in April 1994, democracy itself will be imperilled.
Each vote strengthens and invigorates our democracy. In
marking their ballots, citizens remind those elected that
their position is based on the will of the people and will
remain subject to that will. The moment of voting
reminds us that both electors and the elected bear civic
responsibilities arising out of our democratic
Constitution and its values.224
Section 19 of the Constitution, read in conjunction with section 1(d) of the
Constitution, underscores the idea that an integral aspect of our conception
of representative democracy is that it is a multiparty democracy rather than
a one-party state or some other formulation that places limits on political
participation at a party-political level. In United Democratic Movement
(UDM) v President of the Republic of South Africa and Others (No 2) the
Court made the point as follows:
A multiparty democracy contemplates a political order
in which it is permissible for different political groups to
organise, promote their views through public debate and
participate in free and fair elections. These activities may
be subjected to reasonable regulation compatible with an
open and democratic society. Laws which go beyond
that, and which undermine multiparty democracy, will
be invalid.225

PAUSE FOR REFLECTION

The controversial constitutional amendment that

allowed floor crossing
The dictum in the UDM case quoted above was made with
respect to a controversial constitutional amendment that
allowed for floor crossing in spite of the fact that South
Africa’s electoral system is based on proportional
representation and a list system. The amendment, in effect,
permitted members of the NA representing one political
party to change political parties between elections and still
maintain their seat in the NA. The effect of this was that
member 1, whose membership in the NA came about as a
result of being on party X’s list, could defect during a
specified period and join party Y while retaining the seat he
or she occupied owing to being a member on the electoral
list of party X. In a highly criticised decision, the
Constitutional Court held that the constitutional amendment
was constitutional. This was despite the fact that the
provision clearly robbed the voters of party X of their
representation by allowing an individual for whom they may
not necessarily have voted to cross the floor with their
party’s seat. In justifying its decision to uphold the
amendment as constitutional the Court had this say: 226
This case is not about the merits or demerits of the provisions of
the disputed legislation. That is a political question and is of no
concern to this Court. What has to be decided is not whether the
disputed provisions are appropriate or inappropriate, but whether
they are constitutional or unconstitutional. It ought not to have
been necessary to say this for that is true of all cases that come
before this Court. We do so only because of some of the
submissions made to us in argument, and the tenor of the public
debate concerning the case which has taken place both before and
since the hearing of the matter.227

The Court went on to add the following passage in the

judgment:
None of the rights specified in section 19, seen on its own or
collectively with others, is infringed by a repeal or amendment of
the anti-defection provisions. The rights entrenched under
section 19 are directed to elections, to voting and to participation in
political activities. Between elections, however, voters have no
control over the conduct of their representatives. They cannot
dictate to them how they must vote in Parliament, nor do they have
any legal right to insist that they conduct themselves or refrain
from conducting themselves in a particular manner.228

In light of the above here are some questions to consider:

• What are we to make of these statements made by the
Court in this case?
• Can law and politics be separated in the manner
suggested by the Court here?
• Is the practice of democracy simply to be left to the
determination of Parliament even where the effect of the
constitutional amendment in question seems to violate
the right to vote?
 • How do we reconcile floor crossing with representative
democracy and at the same time take voting rights
seriously?
In the final analysis, the controversy fuelled by floor
crossing was such that the law permitting it was reversed
early in 2009.

In conclusion, it is important to acknowledge that against the background of

South Africa’s struggle against apartheid where the right to vote was
acquired or denied on the arbitrary basis of race, this right came to assume
an overriding significance. The establishment of a system of representative
democracy has succeeded in affirming and recognising the equal citizenship
and political agency of all, especially for those who previously suffered the
indignity of being denied the franchise. However, it is equally important to
realise that there are limitations of the system that may have long-term
consequences. We briefly outline a few of these below:
• The failure to regulate political parties in the Constitution may give rise
to an elite-driven democracy. The fact that there is no requirement that
the parties practise some form of internal democracy ultimately has the
effect of conferring a huge amount of power on the party leadership who
may dominate party affairs and impose their preferred representatives.
• The lack of opportunity for the electorate to influence directly their
representatives outside the five-year election intervals is also less than
ideal. In similar fashion to the point raised above, it leaves the electorate
in the position of onlookers as elected representatives take decisions in
the name of the electorate without an opportunity to oppose
independently unpopular decisions.
• Another major limitation of the system is that it makes it difficult for
people who are not actively involved in political parties to make an
impact on legislative and policy issues affecting them. In other words,
for those without party affiliations and therefore no representative, the
opportunities to contribute their views effectively are severely limited.
• Finally, and possibly most controversially, the fact that the South African
political landscape is dominated by one party, namely the ANC, presents
 its own challenges. This situation is referred to as a dominant party
democracy.229 It is of particular concern as it affects democratic
accountability and limits democratic participation by making the
governing party the primary site for all debate and decision making. The
fact of one-party dominance does not in and of itself present an
immediate crisis of democracy. However, in the long run, it has been
shown to lead to an entrenchment of a system of patronage, erosion of
the separation between party and state, and, ultimately, the domination of
all aspects of national life by the party.230

2.5.4 Participatory democracy

In the section above the picture we sought to convey was that of
representative democracy being at the heart of the South Africa’s
democracy both in terms of the structures that the Constitution establishes
as well in terms of how democracy works in practice. With this in mind, it
is also equally important that we point out that representative democracy is
subject to its own limitations. In particular, representative democracy in the
way it operates carries with it the potential to be disempowering as far as
the citizenry is concerned. Elections take place periodically, usually every
five years in South Africa. This inevitably entails citizens’ conferring their
mandate on a political party to represent their interests over a period of
time. It is quite conceivable that in a system of representative democracy,
decision making on matters of national concern can be made without taking
citizens’ views into account. There is, therefore, a need to somehow
counteract this potentially disempowering aspect of representative
democracy. The Constitution does this by including in its conception of
democracy the element of participatory democracy.
Participatory democracy is primarily concerned with ensuring that
citizens are afforded an opportunity to participate or otherwise be involved
in decision making on matters that affect their lives. Put differently, it adds
a participatory element to representative democracy, augments and
enhances it, but does not replace it. As a conception of democracy, it is in a
sense a derivative of representative democracy as it seeks to ensure that
while citizens may confer a mandate on elected representatives, they are not
totally excluded from the decision-making process in matters that concern
them. In essence, participatory democracy seeks to ensure that citizens are
afforded real opportunities to participate meaningfully in decision making
that affects them.231 The Constitution recognises participatory democracy
as a vital element of South Africa’s democracy. In Doctors for Life
International v Speaker of the National Assembly and Others, Ngcobo J,
writing for the majority, captured this idea as well as elucidating on what
participatory democracy entails when he wrote as follows:
In the overall scheme of our Constitution, the
representative and participatory elements of our
democracy should not be seen as being in tension with
each other. They must be seen as mutually supportive.
General elections, the foundation of representative
democracy, would be meaningless without massive
participation by the voters. The participation by the
public on a continuous basis provides vitality to the
functioning of representative democracy. It encourages
citizens of the country to be actively involved in public
affairs, identify themselves with the institutions of
government and become familiar with the laws as they
are made. It enhances the civic dignity of those who
participate by enabling their voices to be heard and
taken account of. It promotes a spirit of democratic and
pluralistic accommodation calculated to produce laws
that are likely to be widely accepted and effective in
practice. It strengthens the legitimacy of legislation in the
eyes of the people. Finally, because of its open and public
character it acts as a counterweight to secret lobbying
and influence peddling. Participatory democracy is of
special importance to those who are relatively
disempowered in a country like ours where great
disparities of wealth and influence exist.232
In recognising the importance of these participatory elements of democracy,
the Constitution contains various provisions that seek to underscore the fact
that this form of democracy is an indispensable feature of our system of
governance. At the national and provincial levels of government, the
Constitution places the legislatures under a duty to facilitate public
involvement in their legislative and other processes, including their
committee work.233 The exact nature of this duty or whether, in fact, it
constitutes a justiciable constitutional duty was determined in Doctors for
Life. In this case, the issue before the Court related to a complaint from the
applicants that in passing certain pieces of legislation, namely four Bills
affecting health professionals, the NCOP had failed to involve the public as
demanded by the Constitution. The applicants contended that the NCOP
and the affected provincial legislatures had failed to provide for public
involvement by failing to call for written submissions and hold public
hearings. At issue in the case was the question as to the nature and scope of
the duty to facilitate public involvement and the extent to which such duty
was justiciable.234 In making its determination that such a duty indeed
exists, the majority reasoned that this duty correlates with the right to
participation as recognised in international human rights instruments.235
As such, in the context of South Africa’s constitutional democracy, it was
acknowledged that ours is a democratic government that is partly
representative and partly participatory.236

2.5.5 Constitutional democracy

What should be clear at this point is that South Africa’s conception of
democracy is multifaceted. The Constitution, as previously pointed out,
recognises and embraces different conceptions of democracy while
simultaneously holding democracy up as a central organising principle. For
example, the importance attached to democracy in South Africa’s
constitutional project is discernible from its prominence in several
provisions that can at best be said to be tangentially related such as the
following: the Preamble; the Bill of Rights; 237 the limitation clause; 238
the interpretation clause; 239 the principles of co-operative governance;
240and the provisions regulating legislative bodies and their procedures.
Democracy is in many ways the central pillar around which our
constitutional state is arranged, thus making South Africa a constitutional
democracy. But what does it mean to be a constitutional democracy?
It has been pointed out that the term ‘constitutional democracy’ has no
technical meaning nor does it have an underlying theory attached to it; it is
said fundamentally to be a descriptive term.241 As a descriptive term,
constitutional democracy is used to describe a political system in which a
particular political community’s decisions are made in terms of a
constitution. This constitution prescribes the terms and conditions under
which such decisions may be made.242 In our context, the term should be
understood as something of a composite understanding of democracy that
seeks to emphasise the purpose or role played by democracy in our
constitutional system rather than its component parts. In other words,
constitutional democracy seen as a whole is more than a sum of its parts as
it comprises direct, representative, participatory, deliberative or majoritarian
forms of democracy. The Constitution makes no claim to aspiring towards a
particular form of democracy as representing a societal ideal. Instead, it
posits a view of the type of democratic society that it seeks to build. The
Constitution does this by trumpeting the important elements of this society,
such as a supreme and justiciable Constitution, a culture of human rights
and a commitment to a broad range of democratic ideals, non-racialism,
multiculturalism and multilingualism. In practice, this means a democratic
society that is not simply majoritarian in its orientation and practice and
also one that accepts that judicial review is legitimate where it is employed
to give effect to the Constitution. In terms of this conception, constitutional
democracy must be viewed as a purposive concept. This means that
democracy is not an end in itself but a means to achieve an end.243
Indeed, the courts’ use of the term can certainly be read as appealing to
this purposive understanding of constitutional democracy. In Doctors for
Life, Ngcobo J captures this idea when recognising that ‘our constitutional
democracy is not only representative but also contains participatory
elements’.244 In recognising this point, Ngcobo J does this within the
context of discussing the Constitution’s overarching vision, its goal, its
values and its principles. In other words, these specific forms of democracy
must be interpreted or viewed within the overall South African
constitutional context that is closely attuned to South Africa’s history of
colonialism and apartheid.

SUMMARY

This chapter deals with the basic concepts of constitutional law which
inform the more detailed discussion of the various aspects of the South
African Constitution in subsequent chapters.
Constitutionalism is a multifaceted term and is concerned with the
distribution and allocation of powers in an organised way within a given
political community in which a government is established. It provides for
the establishment of the institutions of governance, such as the legislature,
the executive and the courts, as well as the allocation of powers, duties and
functions to the various institutions of government which legitimise the
exercise of power – within the limits set by the Constitution – of each of
these institutions. Constitutionalism also plays an important role in
determining the nature and basis of relations as they exist between
institutions of government and those they govern.
The principle of the separation of powers deals with the division of
governmental power across the three branches, namely the legislative
branch (parliament), the executive branch (president/prime minister and
cabinet) and the judicial branch (the courts). These branches ordinarily have
separate functions and are staffed by different personnel. This allows the
various branches to check the exercise of power of the other branches and
thus ensures accountability. There are, however, several models of
separation of powers and it is important to study these models and to
understand the specific model adopted by the South African Constitution as
well as the practical and legal consequences that flow from the adoption of
this model.
The counter-majoritarian dilemma arises in a constitutional democracy
(like that established in South Africa) in which the constitution rather than
parliament is supreme and in which the judiciary is independent and
empowered to review and set aside the actions of the other two branches of
government. This is because the system affords the power of judicial review
to courts. It thus permits an unelected and seemingly unaccountable
judiciary to declare unconstitutional and invalid laws made and actions
taken by democratically elected and accountable members of the legislature
and executive. This can appear to be anti-democratic. It is important to
engage with the arguments justifying the legitimacy of this system and
attempting to resolve the counter-majoritarian difficulty.
The rule of law is a founding value of the South African Constitution and
is based on the notion that the law is supreme. Hence, public power can
only be exercised in terms of the authority conferred by law and in a non-
arbitrary manner. Inherent in this concept is also the principle that everyone
is equal before the law, the law must be applied equally to all persons
irrespective of their status and all must be subject to the jurisdiction of the
ordinary courts. The rule of law can be conceptualised in formalistic terms
or it can entail a more substantive notion.
The core idea at the heart of democracy is that decisions affecting the
members of a political community should be taken by the members
themselves or at least by elected representatives whose power to make
decisions ultimately derives from the members. Different, and sometimes
overlapping, forms of democracy can exist within a state: direct democracy;
representative democracy; participatory democracy and constitutional
democracy. It is important to be able to distinguish the various forms of
democracy and to understand how these forms of democracy relate to one
another.
1 See Hogg, P (2007) Constitutional Law of Canada 5th ed 2.
2 See generally Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law,
Vol 1 Constitutional Law 10.
3 The British constitutional system, to be discussed in detail below, is one notable exception in
that the Constitution is not contained in one written document.
4 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995) para 262.
5 Currie and De Waal (2001) 10.
6 1952 (2) SA 428 (A).
7 Discussed in ch 1.
8 Akiba, O ‘Constitutional government and the future of constitutionalism in Africa’ in Akiba, O
(ed) (2004) Constitutionalism and Society in Africa 5.
9 Akiba (2004) 5–6.
10 For example, a society that has a monarchy or other form of traditional leadership which
enjoys popular legitimacy may make provision for the recognition of such persons within the
constitutional framework.
11 Currie and De Waal (2001) 26–31 list the main features that constitutions contain as follows:
(1) a preamble; (2) a chart of the state system; (3) an amending provision; (4) a bill of rights;
and (5) financial provisions.
12 See generally Bogdanor, V (2009) The New British Constitution and King, A (2007) The
British Constitution.
13 Modern British constitutional conventions and arrangements are said to have their origin in the
English Charter called the Magna Carta that was enacted in 1225 AD.
14 There have at various times been calls for the adoption of a written constitution. In this respect
see Institute for Public Policy Research (1991) A Written Constitution for the United Kingdom.
15 Dicey, AV (1885) Introduction to the Study of the Law of the Constitution 10th ed (1959).
16 See De Smith, SA and Brazier, R (1998) Constitutional and Administrative Law 8th ed ch 4.
17 See Mann, FA (1990) Further Studies in International Law 104.
18 Munro, CR (1999) Studies in Constitutional Law 2nd ed 135.
19 Motala, Z (1994) Constitutional Options for a Democratic South Africa: A Comparative
Perspective 48.
20 Currie and De Waal (2001) 14.
21 But see the discussion of the Human Rights Act below.
22 Available at http://www.hmso.gov.uk/acts1998/42/data.pdf.
23 See Elliot, M (2004) United Kingdom: Parliamentary sovereignty under pressure International
Journal of Constitutional Law 2(3):545–627 at 553.
24 Currie and De Waal (2001) 15.
25 See generally Chemerinsky, E (2009) Constitutional Law 3rd ed; Hall, DE, Bailey, SJD and
Barron, C (2006) Constitutional Law; Curtis, MK, Parker, C, Douglas, D and Finkelman, P
(2010) Constitutional Law in Context: Volume 1 2nd ed.
26 Currie and De Waal (2001) 17.
27 Motala (1994) 50.
28 Tenth Amendment of the US Constitution.
29 Currie and De Waal (2001) 19–20.
30 Motala (1994) 51.
31 Currie and De Waal (2001) 18.
32 The Bill of Rights was not contained in the US Constitution originally adopted but was
introduced by the first 10 amendments to the Constitution, which were ratified on 15 December
 1791. Several further amendments adding to the Bill of Rights were subsequently adopted.
33 5 US (1 Cranch) 137 (1803).
34 The classic discussion of this dilemma can be found in Bickel, AM (1962) The Least
Dangerous Branch: The Supreme Court at the Bar of Politics. See also Ackermann, BA (1984)
The Storrs lectures: Discovering the Constitution Yale Law Journal 93:1013–72 and
Chemerinsky, E (1989) Foreword: The vanishing Constitution Harvard Law Review 103:43–
102.
35 The US Supreme Court said in Marbury v Madison para 176: ‘The powers of the legislature
are defined and limited; and that those limits may not be mistaken, or forgotten, the
constitution is written. To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may, at any time, be passed by those intended to
be restrained.’ See also para 177: ‘The constitution is either superior, paramount law,
unchangeable by ordinary means or it is on a level with ordinary legislative acts, and like other
acts, is alterable when the legislature shall please to alter it. If the former part of the alternative
be true, then a legislative act contrary to the constitution is not law: if the latter part be true,
then written constitution are absurd attempts, on the part of people, to limit a power, in its own
nature illimitable.’
36 Currie and De Waal (2001) 20.
37 Marbury v Madison 5 US (1 Cranch) 137 (1803) paras 177–9.
38 See generally Heun, W (2010) The Constitution of Germany: A Contextual Analysis and
Crosby, MB (2008) The Making of a German Constitution: A Slow Revolution.
39 Davis, D, Chaskalson, M and De Waal, J ‘Democracy and constitutionalism: The role of
constitutional interpretation’ in Van Wyk, DH, Dugard, J, De Villiers, B and Davis, D (eds)
(1994) Rights and Constitutionalism: The New South African Legal Order 69–70.
40 Davis et al (1994).
41 The German Constitutional Court affirmed this, using the German phrase, ‘eine objektive
Wertordnung’ in BVerfGE 39, 1 para 41: ‘The jurisprudence of the Federal Constitutional
Court is consistently to the effect that the basic right norms contain not only defensive
subjective rights for the individual but embody at the same time an objective value system
which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle
and stimulus for the legislature, executive and judiciary.’
42 See Arts 1 and 79(3) of the German Basic Law for the Federal Republic of Germany. This is
the German Constitution. The position with respect to the basic rights contained in Art 1
(dignity) and Art 20 (constitutional principles) is that they also cannot be amended.
43 Since 1949, the term ‘Rechtsstaat’ has appeared in Art 28 para 1 which states that ‘the
constitutional order in the Länder shall conform to the principles of the republican, democratic
and social state governed by the Rechtsstaat within the meaning of this Basic Law’. Since the
revision of 21 December 1992, the expression has also appeared in para 1 of the new Art 23
dealing with the European Union which states that ‘with a view to establishing a united Europe
the FRG shall participate in the development of the European Union, which is committed to
democratic, Rechtsstaat, social and federal principles as well as to the principle of subsidiarity,
and ensures protection of basic rights comparable in substance to that afforded by this Basic
Law’.
44 See Blaauw-Wolf, L and Wolf, J (1996) A comparison between German and South African
limitation provisions SALJ 113:267–96 at 268 who, while conceding that ‘[a] coherent concept
of Rechtsstaat has not yet been developed’, tell us that the concept is one that has a formal and
a material conception. The authors say of Rechtsstaat that ‘[t]he formal concept consists of a
 number of elements for which no uniformly accepted definition exists. The material concept …
is based on the idea of justice in law and in administrative decisions’.
45 Stern, K (1977) Das Staatsrecht der Bundesrepublik Deutschland Volume One 615 quoted in
Blaauw-Wolf and Wolf (1996) 268.
46 Stern (1977) 615 quoted in Blaauw-Wolf and Wolf (1996) 268.
47 Kunig, P ‘Der Rechtsstaat ’ in Badura, P and Dreier, H (eds) (2001) Festschrift 50 Jahre
Bundesverfassungsgericht 421–44 at 434.
48 See Art 20(1) of the German Basic Law.
49 Motala (1994) 54.
50 Davis et al (1994) 71.
51 Bauman, Z (2007) Consuming Life 140.
52 See ch 1.
53 Arts 38–49 of the German Basic Law deal with the Bundestag.
54 Arts 50–3 of the German Basic Law deal with the Bundesrat. The Bundesrat’s involvement in
law making is limited to matters concerning the Länder (provinces) only.
55 Art 63 of the German Basic Law.
56 Arts 64–5 of the German Basic Law.
57 Arts 54–61 of the German Basic Law. See also Motala (1994) 55.
58 Arts 92–104 of the German Basic Law.
59 Art 93 of the German Basic Law. See also Davis et al (1994) 75–7.
60 Arts 20–37 of the German Basic Law.
61 Art 28 of the German Basic Law. See also Davis et al (1994) 75.
62 The Union of South Africa Act, 1909. This Act was passed through both Houses of the
Imperial Parliament in the United Kingdom exactly as it was forwarded after the South African
Convention was held. King Edward VII assented to the Act on 20 September 1909. A Royal
Proclamation of 2 December 1909 declared the date of the establishment of the Union to be
31 May 1910.
63 Republic of South Africa Constitution Act 32 of 1961.
64 Ss 7–15. See also Dugard, J (1978) Human Rights and the South African Legal Order 35.
65 Ss 108 and 118 entrenched English and Afrikaans as the two official languages of South Africa
with equal status and prohibited amendment of the entrenched sections except with the support
of two-thirds of the members of the House of Assembly and the Senate. However, a later
amendment allowed homelands to recognise one or more of the other indigenous languages for
that particular self-governing territory.
66 The post-1994 Constitutions did adopt a form of parliamentary government usually associated
with the Westminster constitutional model as – unlike in the US system – most members of the
executive remain members of the legislature.
67 Ch 1.
68 These provisions are augmented by s 165(5) of the Constitution which states that ‘[a]n order or
decision issued by a court binds all persons to whom and organs of state to which it applies’
while s 172(1) states that ‘[w]hen deciding a constitutional matter within its power, a court
must declare that any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency’.
69 See, for example, Pharmaceutical Manufacturers Association of South Africa and Another: In
re Ex parte President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC 1;
2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) para 44. See also Roederer, C
‘Founding provisions’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South
 Africa 2nd ed rev service 5 13.18. Roederer is of the view that the role of the proclamation of
supremacy in s 2 is to specify further the value in s 1(c).
70 Roederer (2013) 13.25.
71 Ch 14.
72 S 74(1).
73 S 74(3).
74 See S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449
(CC) (11 April 2001) para 38.
75 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000)
para 44.
76 Michelman, F ‘The rule of law, legality and the supremacy of the Constitution’ in Woolman
and Bishop (2013) 11.37–11.38.
77 Michelman (2013) 11.38.
78 See s 74(1)(a) and (b).
79 Art 79(3) of the German Basic Law states: ‘Amendments to this Basic Law affecting the
division of the Federation into Länder, their participation on principle in the legislative
process, or the principles laid down in Articles 1 and 20 shall be inadmissible.’
80 See Roederer (2013) 13.3–13.8 where he makes the point that section 1 does not explicitly
contain all the foundational values, for example separation of powers, ubuntu, transformation,
social justice and constitutionalism. The courts have recognised these values and several others
and we will discuss them in the chapters to follow.
81 See Woolman, S ‘Application’ in Woolman and Bishop (2013) 31.93–31.94.
82 See Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA
938 (CC); 2001 (10) BCLR 995 (CC) (16 August 2001) para 56 where the Constitutional Court
confirmed that the Constitution contained an ‘objective value system’, but declined to discuss
what this value system might be. See also Roederer (2013) 13.9–13.15.
83 See Carmichele and Geldenhuys v Minister of Safety and Security and Another 2002 (4) SA
719 (C) 728G–I where the Court affirmed that the ‘objective normative value system’ seeks to
establish a society based on human dignity, equality and freedom ‘and institutions of
government which are open, transparent and accountable to the people whom they serve. The
content of this normative system does not only depend on an abstract philosophical inquiry but
rather upon an understanding that the constitution mandates the development of a society
which breaks clearly and decisively from the past and where institutions which operated prior
to our constitutional dispensation had to be instilled with a new operational vision based on the
foundational values of our constitutional system.’
84 However, see Woolman (2013) 31.90 as well as Michelman (2013) 11.40.
85 S 40(1) describes the three levels of government as being ‘distinctive, interdependent and
interrelated’.
86 See s 41(1)(h)(i) to (vi). See also Currie and De Waal (2001) 119–20.
87 Seedorf, S and Sibanda, S ‘Separation of powers’ in Woolman and Bishop (2013) 12.1.
88 Constitutional Principle VI of Schedule 4 of the interim Constitution provided: ‘There shall be
a separation of powers between the legislature, executive and judiciary, with appropriate
checks and balances to ensure accountability, responsiveness and openness.’
89 The two classical texts on this subject are Vile, MJC (1967) Constitutionalism and the
Separation of Powers and Gwyn, WB (1965) The Meaning of the Separation of Powers: An
Analysis of the Doctrine from its Origin to the Adoption of the United States Constitution.
90 See Rautenbach, IM and Malherbe, EFJ (2012) Constitutional Law 6th ed. See also Pieterse, M
(2004) Coming to terms with judicial enforcement of socio-economic rights SAJHR 20:383–
 417 at 386.
91 See Calabresi, SG, Berghausen, ME and Albertson, S (2012) The rise and fall of the separation
of powers Northwestern University Law Review 106(2):527–50 at 529–36.
92 See ch 1.
93 See Bennett, T and Murray, C ‘Traditional leaders’ in Woolman and Bishop (2013) 26.4 and
26.53. See also Seedorf and Sibanda (2013) 12.3 for a discussion on the roots of this doctrine.
94 Locke, J (1690) Second Treatise on Government (1986) 143–4, 150 and 159. See also Van der
Vyver, JD (1993) The separation of powers SAPL 8:177–91 who points out that Locke’s initial
conception of separation of powers classified the threefold governmental powers as legislative
power, executive power (including adjudication) and federative power (foreign relations).
95 Seedorf and Sibanda (2013) 12.5.
96 De Montesquieu, C (1748) De l’Esprit des Loix (Nugent, T (tr), Neumann, F (ed) (1949) The
Spirit of the Laws).
97 For an overview on the history of separation of powers preceding this era, see Seedorf and
Sibanda (2013) 12.3–12.10.
98 Seedorf and Sibanda (2013) 12.1.
99 Seedorf and Sibanda (2013) 12.5.
100 These values are enshrined in s 1(d) of the Constitution.
101 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 108.
102 See S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001) para 17.
103 (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (28 May 1998) (CC)
para 60.
104 South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000]
ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000) paras 18–22.
105 The Constitutional Court made this point in First Certification paras 106–113.
106 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996).
107 First Certification paras 108–12.
108 See ch 4.
109 See ss 43(a) and 42(1).
110 S 44(1)(a) read with s 44(2)(b).
111 S 44(4) provides that when Parliament exercises its legislative authority, it is only bound by the
Constitution and must act in accordance with and within the limits of the Constitution.
112 See ss 46 and 47 for provisions relating to the composition, election and membership of the
NA.
113 See ss 60 and 61 for provisions relating to the composition and allocation of delegates to the
NCOP.
114 See s 57 in respect of the NA and s 70 in respect of the NCOP.
115 See s 58 in respect of the NA and s 71 in respect of the NCOP.
116 S 73(2) permits members of the Cabinet or Deputy Ministers to introduce Bills in the National
Assembly. S 79(1) enjoins the President to assent to and sign a Bill which has been passed by
Parliament.
117 See s 85(1)(b) and (d).
118 See Executive Council of the Western Cape Legislature and Others v President of the Republic
of South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA
877 (22 September 1995) para 51. See also AAA Investments (Proprietary) Limited v Micro
 Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255
(CC); 2007 (1) SA 343 (CC) (28 July 2006) paras 49, 93 and 122–3; Constitutionality of the
Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC 10; 2002 (1) SA 447 (CC); 2001
(11) BCLR 1126 (5 October 2001) para 19; Executive Council of the Province of the Western
Cape v Minister for Provincial Affairs and Constitutional Development and Another, Executive
Council of KwaZulu-Natal v President of the Republic of South Africa and Others
(CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12) BCLR 1360
(15 October 1999) paras 123–4; Justice Alliance of South Africa v President of Republic of
South Africa and Others, Freedom Under Law v President of Republic of South Africa and
Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa
and Others (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC);
2011 (10) BCLR 1017 (CC) (29 July 2011) para 53.
119 See s 91(3).
120 See Pieterse (2004) 388.
121 See De Vos, P (2012, 14 August) Towards a parliament for the people Constitutionally
Speaking available at http://constitutionallyspeaking.co.za/towards-a-parliament-for-the-
people/.
122 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995).
See also Justice Alliance.
123 Act 209 of 1993.
124 Executive Council of the Western Cape Legislature para 51.
125 See also Currie and De Waal (2001) 98–102.
126 S 83(a).
127 Ss 84(1) and 85(1). For a discussion as to the import of the distinction between these two
capacities in which the President exercises power, see ch 5.
128 S 85(2)(a)–(e).
129 S 83(b).
130 S 91(1).
131 S 91(2).
132 S 91(3).
133 S 92(2).
134 The dominant role of the NA becomes apparent if we compare s 55 with the comparable s 68
dealing with the powers of the NCOP. The latter section makes no mention of an accountability
or oversight role for the NCOP.
135 S 92(3)(b).
136 S 102 establishes two different motions, one that provides for the removal of the Cabinet
excluding the President and another motion that provides for the removal of the entire Cabinet,
including the President.
137 S 89(1).
138 Because of the proliferation of quasi-judicial administrative bodies within the executive, this
absolute separation of functions is becoming less clear.
139 See also ch 6.
140 S 165(1).
141 S 166(a)–(e).
142 S 167(3)(a).
143 See s 34 which confers on everyone the right to access the courts.
144 Owing to the fact that s 170 precludes the magistrates’ courts or other courts of a status lower
than the High Court from reviewing the constitutionality of legislation or conduct of the
 President, this discussion necessarily excludes magistrates’ courts.
145 S 172 details the various types of orders that the courts can make in relation to constitutional
matters. It is important to note that in so far as Acts of Parliament, Acts of the provincial
legislatures and conduct of the President are concerned, only the Constitutional Court may
issue an order of final invalidity, after which point such an order has full force and effect
(s 167(5)).
146 S 174.
147 See s 174 wherein the procedure for the appointment of judicial officers is set out. See also
s 177 which deals with the provisions in respect of the removal of judges.
148 S 165(2).
149 S 165(3).
150 S 165(4).
151 (CCT27/00) [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000)
para 25.
152 See s 176(1) and (2) which stipulates how long judges remain in office. In terms of this section,
Constitutional Court judges serve for a maximum term of 12 years or until such time as they
attain the age of 70, whichever occurs first. Other judges remain in office until they are
discharged from active service which is normally at the age of 75.
153 See s 176(3).
154 See s 177 which deals in detail with the procedure in respect of the removal of judges.
155 The process that must be followed by the JSC when a complaint is laid against a judge is set
out in the Judicial Service Commission Act 9 of 1994.
156 S 177(2).
157 See Makwanyane paras 87–9.
158 See generally Minister of Health and Others v Treatment Action Campaign and Others (No 2)
(CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002).
159 See Bickel (1962) 16.
160 See Friedman, B (2002) The birth of an academic obsession: The history of the counter-
majoritarian difficulty, Part five Yale Law Journal 112(2):153–260.
161 See Lenta, P (2004) Democracy, rights disagreements and judicial review SAJHR 20(1):1–31
for a detailed account and critique of some of the various arguments in support of and against
judicial review contributing to the ideals of democracy.
162 One of the views discussed by Lenta (2004) 4 is that of Waldron, J (1999) Law and
Disagreement who argues that judicial review is undemocratic. According to Lenta, Waldron
premises his argument on the fact that judicial review negates the democratic right of citizens
to participate equally in decisions concerning them and their interests. The arguments put
forward by Waldron seek to dispel the notion that there is something about the courts that
makes them especially equipped to make better decisions on constitutional rights or questions
of political morality. Instead, according to Waldron, the right to participate being a
foundational element of democracy is unjustifiably diminished when judicial review denies
citizens an opportunity to participate in decisions that are made the preserve of the courts.
163 See Lenta (2004) 5 for a discussion of Ely’s view that judicial review is legitimate or justifiable
on the basis that there are times when the courts may be called on to guarantee or safeguard the
democratic process (Ely, JH (1980) Democracy and Distrust: A Theory of Judicial Review).
164 See Lenta (2004) 6 for a discussion on Dworkin’s conception of a constitutional democracy
where Dworkin argues that judicial review is an integral part of a democracy in that it sees
democracy as being more than simple majoritarianism (Dworkin, R (1986) Law’s Empire). See
also generally Davis et al (1994) 6–7.
165 Lenta (2004) 5–6.
166 See Makwanyane para 88 for the views of Chaskalson P on the place of public opinion in
constitutional adjudication.
167 Makwanyane paras 87–9.
168 See Lenta (2004) 1 for a detailed account and critique of some of the various arguments in
support of and against judicial review contributing to the ideals of democracy. See also Van der
Walt, J and Botha, H (2000) Democracy and rights in South Africa: Beyond a constitutional
culture of justification Constellations 7(3):341–62 at 350.
169 See Lenta (2004) 10–11 where he discusses Dworkin’s substantive conception of democracy
that demands that a balance be struck between collective decisions and individual rights by
placing limitations on the majoritarian legislatures by means of mechanisms such as judicial
review (Dworkin (1986)).
170 See Lenta (2004) 17–18.
171 See Pieterse (2004) 391–2.
172 Van der Walt and Botha (2000) 353–5.
173 Lenta (2004) 31 makes this point as follows: ‘They are mixed because, even if the people are
deemed to have agreed to the inclusion of rights in their constitution, their consent cannot be
taken to extend to controversial judicial interpretations.’
174 See, for example, Magen, A (2008) The rule of law and its promotion abroad: Three problems
of scope Stanford Journal of International Law 45(1):51–116 and Rosenfeld, M (2001) The
rule of law and the legitimacy of constitutional democracy Southern California Law Review
74(5):1307–52.
175 Dicey(1959) xcvi–cli (also referred to in Currie and De Waal (2001) 75–7).
176 Dicey (1959) 45–54. See also Dugard (1978) 37.
177 See Klug, H (2010) The South African Constitution: A Contextual Analysis 225–9 where the
author describes how the courts (especially the magistrates’ courts) were ‘part of the state’s
disciplinary machinery’.
178 Dugard (1978) 43.
179 Dyzenhaus, D (2007) The pasts and future of the rule of law in South Africa SALJ 124(4):734–
61 at 738.
180 See Dyzenhaus (2007) 738–9.
181 See Klug (2010) 32 where he describes how a substantive conception of the rule of law
developed as part of human rights law. See also Dugard (1978) 39ff.
182 See Centre for Human Rights University of Pretoria available at
http://www.1chr.up.ac.za/images/files/documents/ahrdd/theme36/rule_of_law_lagos_1961.pdf.
183 (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October 1998).
184 Fedsure para 56.
185 See also President of the Republic of South Africa and Others v South African Rugby Football
Union and Others (SARFU III) (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR
1059 (10 September 1999) paras 38 and 148; Pharmaceutical Manufacturers paras 20–21;
Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04) [2005]
ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) para 49; Albutt v
Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010] ZACC 4;
2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC) (23 February
2010) para 49; Democratic Alliance v President of South Africa and Others (CCT 122/11)
[2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012)
para 12.
186 See Hoexter, C (2007) Administrative Law in South Africa 321.
187 (CCT27/04) [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March
2005) para 49.
188 Pharmaceutical Manufacturers para 66.
189 Pharmaceutical Manufacturers para 89.
190 Lesapo v North West Agricultural Bank and Another (CCT23/99) [1999] ZACC 16; 2000 (1)
SA 409; 1999 (12) BCLR 1420 (16 November 1999).
191 (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999)
para 1.
192 Lesapo para 11.
193 Lesapo para 17.
194 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 47.
195 Janse van Rensburg and Another v Minister of Trade and Industry and Another (CCT13/99)
[2000] ZACC 18; 2001 (1) SA 29; 2000 (11) BCLR 1235 (CC) (29 September 2000) para 25.
196 S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June
2002) para 18.
197 See Dyzenhaus (2007) 734–61.
198 In a press statement issued in 1992 by former President Nelson Mandela, he described
‘democracy for all South Africans’ as the final goal of negotiations. Available at
http://www.sahistory.org.za/archive/press-statement-nelson-r-mandela-president-anc-ancnp-
summit-meeting-world-trade-centre-johan.
199 Motala (1994) 19.
200 See, for example, Kurki, M (2012) Democracy and conceptual contestability: Reconsidering
conceptions of democracy in democracy promotion International Studies Review 12(3):362–
86; Benhabib, S (1996) Democracy and Difference: Contesting the Boundaries of the Political.
201 While not a definition of democracy, the principles and values in section 1(d) do, to a
significant degree, tend to tally with certain elements or practices which have been identified
and are said to be indicative of a democratic society. For example, (1) government based on
consent of the governed through free and fair elections; (2) the active participation of the
people, as citizens, in politics and civic life; (3) protection of the human rights of all citizens;
(4) respect for the rule of law; (5) majority rule and respect for minority rights; and (6)
constitutional limits of government. In general, see Beetham, D (2004) Towards a universal
framework for democracy assessment Democratization 11(2):1–17.
202 Roux, T ‘Democracy’ in Woolman and Bishop (2013) 10.1.
203 See Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)
[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006)
paras 96–117.
204 See generally Scarrow, SE (2001) Direct democracy and institutional change: A comparative
investigation Comparative Political Studies 34(6):651–65 at 654–65.
205 S 17.
206 Woolman captures the importance of s 17 as follows: ‘By creating political space for crowd
action, s 17 vouchsafes a commitment to a form of democracy in which the “will of the
people” is not always mediated by political parties and the elites that run them.’ Woolman, S
‘Assembly, demonstration, picket and petition’ in Currie, I and De Waal, J (2013) Bill of Rights
Handbook 6th ed 397–8.
207 Ss 84(2)(g) and 127(2)(f) of the Constitution confer this power on the President and provincial
Premiers respectively.
208 (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June
2008).
209 Merafong para 29.
210 See the dissenting judgment of Moseneke J in Merafong paras 133–40. For a more detailed
description of how the civic protest unfolded, became violent and its impact on the residents of
Merafong, particularly in Khutsong township, see Kirshner, J and Phokela, C (2010) Khutsong
and xenophobic violence: Exploring the case of the dog that didn’t bark particularly 8–14.
Available at
http://www.gcro.ac.za/sites/default/files/News_items/Xeno_reports_July2010/case_studies/5_
Khutsong_reprint_lowres.pdf.
211 See Kirshner and Phokela (2010).
212 See generally Kateb, G (1981) The moral distinctiveness of representative democracy
Ethics 91(3):357–74.
213 Sachs J in a concurring judgment in Doctors for Life stated that ‘representative democracy
undoubtedly lies at the heart of our system of government …’ para 229.
214 Roux (2013) 10.13.
215 See Currie and De Waal (2001) 86.
216 S 1(d).
217 S 42(3).
218 S 46(1)(d); 105(1)(d); 157(2)(a).
219 See s 57, in particular subsecs (1)(b) and (2)(b).
220 1998 (3) SA 430 (C).
221 De Lille para 27.
222 De Lille para 27.
223 For example New National Party v Government of the Republic of South Africa and Others
(CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999); August
and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1;
1999 (4) BCLR 363 (1 April 1999); Minister of Home Affairs v National Institute for Crime
Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04) [2004]
ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004).
224 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC)
(12 March 2009) para 52.
225 (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002)
para 26.
226 For a critical appraisal of the disconcerting implications of this passage, see Roux, T (2009)
Principle and pragmatism on the Constitutional Court of South Africa International Journal of
Constitutional Law 7(1):106–38 at 128–30.
227 UDM para 11.
228 UDM para 49.
229 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and the
African National Congress in a dominant party democracy Constitutional Court Review 2:1–86
at 23; Southall, R (1994) The South African elections of 1994: The remaking of a dominant-
party state The Journal of Modern African Studies 32(4):629–55; Giliomee, HB (1998) South
Africa’s emerging dominant-party regime Journal of Democracy 9(4):128–42; Friedman, S
‘No easy stroll to dominance: Party dominance, opposition and civil society in South Africa’ in
Giliomee, HB and Simkins, CEW (eds) (1999) The Awkward Embrace: One Party Domination
 and Democracy 97; Alence, R (2004) South Africa after apartheid: The first decade Journal of
Democracy 15(3):78–92 at 78.
230 See Choudhry (2009) 24–5.
231 Currie and De Waal (2001) 87.
232 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 115.
233 See ss 59, 72 and 118.
234 Doctors for Life para 75.
235 Doctors for Life paras 106–8.
236 Doctors for Life para 116.
237 See s 7(1).
238 S 36(1).
239 S 39(1).
240 S 41.
241 Roux (2013) 10.18–10.19.
242 Roux (2013) 10.19.
243 Roux (2013) 10.19.
244 Doctors for Life para 111.
Separation of powers and the
three branches of government

3.1 Introduction
3.2 A new democratic constitutional dispensation within a
system of separation of powers
Summary

3.1 Introduction
A study of the different branches of government can best be done by using
the separation of powers doctrine as a lens through which to look at how the
three branches operate and how they relate to one another. In this chapter
we therefore introduce the distinctly South African version of the doctrine
of separation of powers. The judiciary is still developing this doctrine
through the interpretation of the South African Constitution. In chapter 2 of
this book we discussed the scope and content of the doctrine of separation
of powers as it manifests in various constitutional systems in other parts of
the world and, briefly, as it has thus far been developed in South Africa. In
the next three chapters we focus more pertinently on the various branches
of government established by the South African Constitution,1 namely the
legislature, the executive and the judiciary. We explore the composition,
powers and functions of these branches of government and the nature of the
relationship between the various branches with specific emphasis on the
notion that these branches operate in accordance with a system of checks
and balances. We also discuss the role, powers and functions of the National
Prosecuting Authority (NPA).2 This is an independent body created by the
Constitution and tasked with overseeing the prosecution of accused persons.
The discussion of these separate branches of government and their
relationship to each other takes place against the background of the
particular South African context highlighted in chapter 1, most notably by
what has been described as a ‘surprise re-entry’ and ‘resurgence’ of
traditional leadership in South Africa in the post-apartheid era.3 One of the
most vexing constitutional questions in the democratic era relates to the role
of traditional leaders and traditional governance structures, and where and
how these structures fit into a scheme of separation of powers with its three
branches of government.4 We will address this question as we discuss the
various branches of government. We do so as we contend that the
resurgence of customary practices and leadership institutions in the
democratic era is not as surprising as some commentators have argued. This
is especially so given that ‘South Africa is as rich in tenacious institutions
with indigenous roots as other African countries’ and that these institutions
‘were entrenched (albeit in distorted ways) over many decades of
segregationist and apartheid rule’.5 Moreover, if viewed from a historical
perspective, it is sometimes argued that traditional authorities in southern
Africa ‘have always engaged assertively with other sites of authority and
forms of government’.6 Current-day supporters of the maintenance and
restoration of traditional governance institutions and customs have argued
that traditional leaders have provided continuity of governance even though
they are undoubtedly tainted by their association with segregation and
apartheid. This is particularly so in rural areas where there were scant
alternative governance structures and the influence of the institutions of the
democratic state is at its weakest.7 Others, however, see the resurgence of
traditional governance institutions as a regressive step that undermines
progress towards democratic consolidation in South Africa because
traditional governance structures are inherently undemocratic, patriarchal
and potentially oppressive.8
Whatever a person’s view on traditional leadership and traditional
governance institutions, it is nevertheless important to explore the powers
and functions of the various branches of government and the relationship
between these branches with reference to these institutions. To this end we
also discuss the powers and functions of the National House of Traditional
Leaders. Parliament created this institution via the National House of
Traditional Leaders Act (the National House Act) 9 and pursuant to
section 212(2)(e) of the Constitution. This section permits the promulgation
of legislation to deal with matters relating to issues of traditional leadership.
Traditional descriptions of South African constitutional law ignore those
aspects of the South African political and governance context that do not
neatly reflect the Western-style constitutional structures established by the
Constitution. In this book we focus on these structures but do so with an
awareness that there are different centres of power in South Africa. One is
centred around the formal institutions of the legislature, the executive and
the judiciary, all of which are described and regulated in the Constitution.
Another is centred around a more informal and ever-changing set of
institutions such as traditional leadership institutions.
Apart from discussing the various branches of government with
reference to the role played by traditional leaders, we will also discuss the
various branches of government with reference to the role played by
political parties in bringing the Constitution into operation. Power is centred
in such political parties – especially the leadership of the most dominant
political parties, the African National Congress (ANC) and the Democratic
Alliance (DA). The internal culture of these parties and the leadership style
of their leaders thus influence how especially the legislature and the
executive operate within the doctrine of separation of powers.
Lastly, we consider the composition, powers and functions of various
other constitutional institutions created to support constitutional democracy.
These are sometimes referred to collectively as the Chapter 9 institutions.
These constitutional bodies are required to play an oversight role over the
legislature, the executive and the judiciary, and to deepen and safeguard
democracy. However, we limit our discussion in this regard to the following
institutions: the Public Protector; 10 the Auditor-General; 11 and the
Electoral Commission.12 In addition, we consider the Judicial Service
Commission (JSC).13
In the following chapters we therefore deal with four interrelated issues
relating to the structures of government as these operate within a system of
separation of powers:
• The current chapter sets out and explains the framework within which
the three branches of government operate and provides a brief overview
of the historical origins of the doctrine of separation of powers and its
influence on South Africa’s new constitutional dispensation.
• Chapter 4 deals with the composition and functioning of the legislature
and its relationship with the other branches of government.
• Chapter 5 deals with the composition and functioning of the executive
and its relationship with the other branches of government.
• Chapter 6 deals with the composition and functioning of the judiciary
and its independence from the other branches of government as well as
the prosecuting authority.
• Chapter 7 considers the role of certain Chapter 9 institutions.

3.2 A new democratic constitutional

dispensation within a system of separation
of powers
The new constitutional dispensation established by the 1993 Constitution
(the interim Constitution) 14 and later the 1996 Constitution is often said to
serve as a bridge between a past that was characterised by the worst forms
of political repression and inhumane treatment of masses of people, and a
future that uncompromisingly commits the state to the values of human
dignity, freedom and equality for all persons, irrespective of race or
creed.15 As we have seen, when the interim Constitution was enacted, it
signalled a dramatic change in the system of governance from one based on
rule by Parliament to a constitutional state in which a supreme Constitution
guarantees the rights of individuals. ‘It also signalled a new dispensation, as
it were, where rule by force would be replaced by democratic principles and
a governmental system based on the precepts of equality and freedom.’ 16
But these dramatic changes were also reflected in necessary changes to
the structures of government. The 1993 and 1996 Constitutions thus
introduced significant changes to the composition and functioning of the
legislative, executive and judicial branches of government as well as the
composition and functioning of governance structures at the provincial and
local level. At the heart of these changes we find a more decisive, if not
entirely strict, division of power between the various branches of
government and between different spheres of government at the national,
provincial and local levels. In the following chapters we focus primarily on
the national sphere of government and the institutions created by the
Constitution to regulate and check the exercise of public power in this
sphere. We then proceed to discuss the distribution of powers and functions
between the national sphere of government and the other spheres in
chapter 8 of this book.
The Constitution provides for the division of the national government
into three separate branches:
• The national Parliament which consists of the National Assembly (NA)
and the National Council of Provinces (NCOP). Its members are the
people’s representatives and it is the highest law-making authority.
• The national executive consists of the President and the Ministers who
together form the Cabinet. The Ministers are the political heads of
different government portfolios and perform executive functions.
• The judiciary exercises judicial review of government conduct.
Section 165 of the Constitution vests judicial authority in the courts. The
courts must be independent and are subject only to the law and the
Constitution which they must apply without fear, favour or prejudice.17
The Constitution is structured in such a way that different chapters are
dedicated to the different branches of government, namely the legislative
authority, executive authority and judicial authority. Chapter 4 of the
Constitution deals exclusively with the legislative authority in the national
sphere of government, Chapter 5 deals with the executive authority in the
national sphere of government, while Chapter 8 is dedicated to the judicial
authority of the Republic. This means that the doctrine of separation of
powers, although never directly mentioned in the document, is nevertheless
firmly entrenched in the 1996 Constitution of South Africa. In Glenister v
President of the Republic of South Africa and Others (Glenister I),18 for
example, Langa CJ, in reference to the separation of powers, stated that
‘although not expressly mentioned in the text, it was “axiomatic” that it was
part of the constitutional design’.19 And in Doctors for Life International v
Speaker of the National Assembly and Others, Ngcobo J stated that ‘the
structure of the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects the concept of
separation of powers’.20
However, in at least one sense, the doctrine does not require a strict
separation between the judiciary on the one hand and the legislature and
executive on the other as it requires the judiciary to check whether the other
branches comply with the law and exercise their authority in conformity
with the Constitution.21 This potentially places the judiciary in the firing
line as the courts, which must ultimately interpret the Constitution and flesh
out the notion of separation of powers and its limits, are the final arbiters of
the supreme Constitution.22 Because the Constitution is supreme and
binding on all branches of government,23 and because the courts must
interpret and enforce the Constitution, it means that when the legislature or
executive exercises its constitutionally mandated authority, it must act in
accordance with, and within the limits of, the Constitution as determined
by the courts. As the Court stated in Doctors for Life:
The supremacy of the Constitution requires that ‘the
obligations imposed by it must be fulfilled’. Courts are
required by the Constitution ‘to ensure that all branches
of government act within the law’ and fulfil their
constitutional obligations. This Court ‘has been given the
responsibility of being the ultimate guardian of the
Constitution and its values’. Section 167(4)(e), in
particular, entrusts this Court with the power to ensure
that Parliament fulfils its constitutional obligations. This
 section gives meaning to the supremacy clause, which
requires that ‘the obligations imposed by [the
Constitution] must be fulfilled’. It would therefore
require clear language of the Constitution to deprive this
Court of its jurisdiction to enforce the Constitution.24
The courts must exercise this vital task while at the same time remaining
conscious of the limits on judicial authority and the Constitution’s design
and must leave certain matters to other branches of government. This means
that the judiciary should not interfere in the processes of other branches of
government unless to do so is mandated by the Constitution.25
Accordingly, the division of powers is not strictly enforced if it appears, for
example, that one sphere of government is failing to comply with its
constitutional obligations. The courts can always intrude to check the other
branches when they fail to comply with their constitutional obligations.26
In this regard, the judgment in Glenister I is apposite where the Court
held that:
it is a necessary component of the doctrine of the
separation of powers that courts have a constitutional
obligation to ensure that the exercise of power by other
branches of government occurs within constitutional
bounds. But even in these circumstances, courts must
observe the limits of their powers.27
This is in accordance with the test formulated in Doctors for Life which
provides that intervention by a court in the legislative process:
would only be appropriate if an applicant can show that
there would be no effective remedy available … once the
legislative process is complete, as the unlawful conduct
will have achieved its object in the course of the process.
The applicant must show that the resultant harm will be
material and irreversible.28
PAUSE FOR REFLECTION

A dialogic model of the separation of powers

doctrine
The separation of powers doctrine in a liberal democracy is
said to enable the complex task of governance, law making
and law enforcement to be performed by the institution
best equipped to do so. It is also said to disperse power to
avoid the overconcentration of power in one body or one
person.29 But as Liebenberg points out, the doctrine as it
is traditionally envisaged in liberal thought ‘has the
potential to frustrate transformation when it assumes an
idealised form of strictly demarcated separate spheres,
instead of a functional and pragmatic device to facilitate
responsive, accountable government’.30 What is
envisaged in the South African model of constitutional
democracy is a relationship between the three branches
that ensures accountability as well as responsiveness and
openness on the part of the various branches. Liebenberg
argues that in this model, which we shall call the ‘post-
liberal’ model, the focus is not so much on whether one
branch of government has transgressed the boundaries of
the other, but rather on ‘whether the branches all remain
able to participate in the process of mutually defining their
boundaries’.31 This is also sometimes called a dialogic
model of the separation of powers as it envisages an
ongoing, structured, constitutional dialogue between the
three branches of government. Although the dialogue will
often be robust and although severe tensions may arise
among the three branches of government, the three
branches will remain engaged with one another on a formal
level to test the limits of power exercised by each branch.
Liebenberg contends that this fluid, dialogic model of
separation of powers is best suited to promoting
transformative jurisprudence.32 When considering the
appropriate role of the three branches of government in the
South African context, it is therefore important to take into
account the transformative nature of the South African
Constitution.
In Certification of the Constitution of the Republic of
South Africa, 1996, the Constitutional Court affirmed that
there was no universal model of separation of powers. It
claimed that in democratic systems of government in which
checks and balances result in the imposition of restraints
by one branch of government on another, there is no
separation that is absolute. It continued:
[t]he principle of separation of powers, on the one hand,
recognises the functional independence of branches of
government. On the other hand, the principle of checks and
balances focuses on the desirability of ensuring that the
constitutional order, as a totality, prevents the branches of
government from usurping power from one another. In this sense it
anticipates the necessary or unavoidable intrusion of one branch
on the terrain of another. No constitutional scheme can reflect a
complete separation of powers: the scheme is always one of partial
separation.33

This means that courts will inevitably play an important role

in regulating and safeguarding the separation of powers.
However, it also means that the courts may be accused of
intruding too far into the domain of the other two branches
of government when they do so. This raises the counter-
majoritarian problem highlighted in chapter 2. However, as
the ultimate guardians of the Constitution, the courts not
only have the right to intervene in order to prevent the
violation of the Constitution, they also have the duty to do
so.34 This is because it is a necessary component of the
doctrine of separation of powers that courts have a
constitutional obligation to ensure that the exercise of
power by other branches of government occurs within
 constitutional bounds. Courts must nevertheless observe
the limits of their powers.
The converse question arises: can the legislature and
the executive ever intrude on the terrain of the judiciary?
For example, can the legislature impose limits on the
power of the courts to sentence those convicted of criminal
offences and, if so, to what extent? 35 Can the executive
engage members of the judiciary in informal discussions,
for example by creating ‘appropriate mechanisms’ in order
‘to facilitate for [sic] regular interface between the three
spheres of the State to enhance synergy and constructive
engagement among them in pursuit of common
transformative goals that are geared to benefit the society
at large’? 36 These are complex questions, but in essence
the answer is that as there is no absolute separation of
powers, there is no absolute bar on the other two branches
intruding on the terrain of the judiciary. However, there is
one important caveat, namely that no intrusion can ever be
allowed if such an intrusion will undermine the
independence or impartiality of the judiciary. For this
reason, it is unlikely that a court will ever approve of the
creation of a mechanism to facilitate regular private
discussions between the judiciary and the other branches
of government to enhance synergy and constructive
engagement among them in pursuit of common
transformative goals.37

SUMMARY

The Constitution creates three branches of government – the legislature, the

executive and the judiciary – and the study of each of these branches of
government must be conducted with reference to the relationship between
the branch being studied and the other two branches. It must also be
understood with reference to the practices of traditional leadership and the
culture within dominant political parties. Understanding the separation of
powers doctrine is therefore pivotal for understanding how the various
branches of government work and what the limits of the power of each
branch are. In this regard, the judiciary must be treated as unique as it
requires a high degree of independence from the other branches of
government. The judiciary has the vital task of enforcing the provisions of
the Constitution and of ensuring that the other branches of government act
in accordance with its provisions. However, this format does not easily
accommodate other structures of government such as traditional leadership
or Chapter 9 institutions.

1 See, generally, Chapters 4, 5 and 8 of the Constitution which detail the provisions pertaining to
Parliament, the President and the national executive, and the judiciary respectively, read with
Chapters 3 (co-operative government), 6 (the provinces), 7 (local government) and Schedules 4
and 5 that delineate areas of concurrent national and provincial, and exclusive provincial
legislative competences.
2 See s 179 of the Constitution.
3 Oomen, B (2005) Chiefs in South Africa, Law, Power and Culture in the Post-Apartheid Era
11.
4 Addressing this problem is made even more difficult by the fact that many traditional leaders
were co-opted by the apartheid regime. At the time of writing there has been a resurgence of
support for traditional leadership institutions and the role of African customary law. Evidence
of the latter can be garnered from the promulgation of the Communal Land Rights Act 11 of
2004 (CLaRA) and the subsequent constitutional challenge to it in Tongoane and Others v
National Minister for Agriculture and Land Affairs and Others (CCT100/09) [2010] ZACC 10;
2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010). See also Pilane and Another
v Pilane and Another (CCT 46/12) [2013] ZACC 3; 2013 (4) BCLR 431 (CC) (28 February
2013). For the leading commentary on CLaRA, traditional leadership and communal land, see
Claassens, A and Cousins, B (eds) (2008) Land, Power, and Custom: Controversies Generated
by South Africa’s Communal Land Rights Act.
5 See Beall, J, Mkhize, S and Vawda, S (2005) Emergent democracy and ‘resurgent’ tradition:
Institutions, chieftaincy and transition in KwaZulu-Natal Journal of Southern African
Studies 31(4):755–71 at 756.
6 Beall et al (2005) 756.
7 Hobsbawm, E and Ranger, T (eds) (1983) The Invention of Tradition and Vail, L (ed) (1989)
The Creation of Tribalism in Southern Africa.
8 See Beall et al (2005) fn 5.
9 Act 22 of 2009.
10 S 181(1)(a) of the Constitution.
11 S 181(1)(e) of the Constitution.
12 S 181(1)(f) of the Constitution.
13 S 178 of the Constitution.
14 The Constitution of the Republic of South Africa 200 of 1993.
15 See s 1 read with s 7 of the Constitution. The metaphor of a bridge was first introduced into
South Africa’s constitutional lexicon by the postamble to the interim Constitution titled
‘National Unity and Reconciliation’. It was popularised by Etienne Mureinik – see Mureinik, E
(1994) A bridge to where? Introducing South Africa’s interim Bill of Rights SAJHR 10:30. See
also S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3)
SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 262 where Mohamed DP,
quoting in part the postamble to the interim Constitution, said: ‘The South African Constitution
is different: it retains from the past only what is defensible and represents a decisive break
from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian,
insular, and repressive and a vigorous identification of and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the
Constitution … What the Constitution expressly aspires to do is to provide a transition from
these grossly unacceptable features of the past to a conspicuously contrasting “future founded
on the recognition of human rights, democracy and peaceful co-existence and development
opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.’
16 Makwanyane para 220.
17 S 165(1) and (2).
18 (CCT 41/08) [2008] ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC) (22 October
2008). This case is known as Glenister I as the Constitutional Court later handed down
judgment in a similar matter in Glenister v President of the Republic of South Africa and
Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC)
(17 March 2011), known as Glenister II.
19 Glenister I paras 29–32.
20 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 37. See also Certification of the Constitution of the Republic of South Africa, 1996
(CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) paras 106–13 where the Court held that the provisions of the Constitution
are structured in a way that makes provision for the separation of powers, and South African
Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000] ZACC 22;
2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000) para 22.
21 See, for example, s 172(1) of the Constitution which provides that a court: ‘(a) must declare
that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency; and (b) may make any order that is just and equitable, including: (i) an order
limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the
declaration of invalidity for any period and on any conditions, to allow the competent authority
to correct the defect’.
22 S 167(5) of the Constitution provides: ‘The Constitutional Court makes the final decision
whether an Act of Parliament, a provincial Act or conduct of the President is constitutional,
and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court,
or a court of similar status, before that order has any force.’
23 S1(c) read with s 8(1).
24 Doctors for Life para 38.
25 Doctors for Life para 37.
26 See Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02)
[2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) para 99 where the
Court stated: ‘The primary duty of courts is to the Constitution and the law, “which they must
 apply impartially and without fear, favour or prejudice”. The Constitution requires the state to
“respect, protect, promote, and fulfil the rights in the Bill of Rights”. Where state policy is
challenged as inconsistent with the Constitution, courts have to consider whether in
formulating and implementing such policy the state has given effect to its constitutional
obligations. If it should hold in any given case that the state has failed to do so, it is obliged by
the Constitution to say so. In so far as that constitutes an intrusion into the domain of the
executive, that is an intrusion mandated by the Constitution itself.’
27 Glenister I para 33. See also Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28;
2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August 2013) para 31 where the
Constitutional Court affirmed is reluctance to interfere in the power of the NA to determine its
own internal arrangements, proceedings and procedures, and to make rules and orders
concerning its business.
28 Doctors for Life para 44. This test applies equally to executive decision making and execution
of law and policy.
29 Glenister I para 35. See also Liebenberg, S (2010) Socio-Economic Rights Adjudication under
a Transformative Constitution 67.
30 Liebenberg (2010) 67.
31 Liebenberg (2010) 69, quoting Minow, M (1990) Making All the Difference: Inclusion,
Exclusion and American Law 361.
32 Liebenberg (2010) 71.
33 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) paras 108–9. See also De Lange v Smuts NO and Others (CCT26/97)
[1998] ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (28 May 1998) para 60 where
Ackermann J stated: ‘I have no doubt that over time our Courts will develop a distinctively
South African model of separation of powers, one that fits the particular system of government
provided for in the Constitution and that reflects a delicate balancing, informed both by South
Africa’s history and its new dispensation, between the need, on the one hand, to control
government by separating powers and enforcing checks and balances and, on the other, to
avoid diffusing power so completely that the government is unable to take timely measures in
the public interest.’
34 Doctors for Life para 70.
35 In S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001), the Constitutional Court found that the legislative prescription requiring courts
to impose mandatory minimum sentences in certain cases did not necessarily infringe on the
separation of powers doctrine. As checks and balances constitute an integral part of the
separation of powers principle and prevent one arm of the state from becoming too powerful in
the exercise of the powers allocated to it, legislation on penal sentencing does not, per se,
infringe the separation of powers principle between the legislature and the judiciary.
36 De Vos, P (2011, 24 November) Cabinet statement on transformation of judicial system
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/cabinet-statement-
on-transformation-of-judicial-system/.
37 See Yacoob, Z (2012) ‘The Dynamic Constitution’, Keynote Address, University of Cape
Town Constitution Week, 12 March 2012, available at
http://constitutionallyspeaking.co.za/justice-zac-yacoob-on-the-dynamic-constitution/ where, in
reference to the proposed Department of Justice’s ‘review’ of the jurisprudence of South
Africa’s Constitutional Court and Supreme Court of Appeal and an evaluation of the
contribution or lack thereof of jurisprudence to the transformation of society, the Justice stated:
‘… this cannot be intended to mean that the executive and the legislature should be able to
discuss matters of importance with the judiciary directly and outside a court hearing, in an
effort to influence it. If this is what is meant I would find it difficult to agree.’
Separation of powers and the
national legislature

4.1 Introduction
4.2 General rules regarding the operation of Parliament
4.2.1 Introduction
4.2.2 Openness and transparency in Parliament
4.2.3 The powers and privileges of Members of Parliament
4.2.4 Public involvement in the legislative and other processes
of the National Assembly and the National Council of
Provinces
4.3 The National Assembly
4.3.1 The composition of the National Assembly
4.3.2 Eligibility for election to the National Assembly
4.3.3 Duration of the National Assembly, sittings and its
dissolution
4.3.4 Powers and functioning of the National Assembly
4.4 The National Council of Provinces
4.4.1 The composition and functioning of the National Council
of Provinces
4.4.2 Procedures, internal arrangements and committees of the
National Council of Provinces
4.5 Functions of Parliament
 4.5.1 Introduction
4.5.2 National forum for public consideration of issues
4.5.3 Holding the executive accountable to Parliament
4.5.4 Maintaining oversight of the national executive authority
and other organs of state
4.5.5 Passing of legislation
4.5.6 Delegation of legislative powers to executive or other
legislatures
4.6 National House of Traditional Leaders
Summary

Figure 4.1 The separation of powers and the national legislature

4.1 Introduction
In this chapter, we focus on the national sphere of government and discuss
the powers, functions and operation of the national legislature or
Parliament as it is referred to in the Constitution. Parliament has the power
to:
• consider, pass, amend or reject legislation on any subject that falls within
its jurisdictional areas of competence
• ensure that all executive organs of state in the national sphere of
government are accountable to it
• maintain oversight of the exercise of national executive authority,
including the implementation of legislation
• maintain oversight of any organ of state.1
Apart from considering, passing, amending or rejecting legislation,
therefore, Parliament has the power to check the exercise of power by the
national executive and other organs of state and to ensure that the national
executive and various other organs of state are held accountable for the
manner in which they exercise their powers.
Parliament is a bicameral legislature. This means that it is divided into
two Houses. The lower House of Parliament is called the National
Assembly (NA) and the upper House of Parliament is called the National
Council of Provinces (NCOP).2 Although legislative power is distributed
between these two Houses, the NA is constitutionally and politically the
dominant House. In essence, the idea behind bicameralism is that the two
Houses of Parliament represent different interests and thus act as a check on
one another.3 Further, having two Houses is said to provide for better
representation of the electorate in a heterogeneous society, to assist in
alleviating Parliament’s workload and to promote a thorough consideration
of matters before Parliament.4 We argue that the main justification for
bicameralism is to ensure adequate democratic representation of different
interests, namely the interests of the electorate in general by the NA on the
one hand, and the interests of the nine provinces by the NCOP on the other
hand.5
In most bicameral legislatures, including the South African Parliament,
the members of each House are elected or appointed in different ways. In
the case of the NA, members are elected via their respective political parties
in a national election. In the case of the NCOP, they are elected via the
provincial legislatures. The members of each House are elected or
appointed in different ways because they are supposed to represent different
broad interests and to act as a check on the exercise of power by the other
House. In South Africa, the NA is intended to represent the interests of all
South Africans6 while the NCOP is intended to represent the interests of
provinces in the national legislature.7
Although legislative authority and other powers are distributed between
the two Houses, the NA is the dominant and more powerful House of
Parliament. This is because:
• the NA elects 8 and can also dismiss 9 the President
• with the exception of two members, all the other members of the
executive must be selected from and remain members of the NA10
• the NA is explicitly tasked with the duty to hold all executive organs of
state in the national sphere of government accountable to it and to
maintain oversight of the exercise of national executive authority,
including the implementation of legislation 11
• the NA plays a decisive role in various other appointments.12
The NCOP has a less defined role in holding the executive to account and
has no role in the appointment or dismissal of members of the executive.
Unlike the executive, which has its seat in Pretoria, the seat of Parliament is
in Cape Town.13 However, an Act of Parliament can determine that the seat
of Parliament is changed as long as the correct procedure is followed.14
Sittings of the NA or the NCOP are permitted at places other than the seat
of Parliament, but only on the grounds of public interest, security or
convenience, and if provided for in the rules and orders of the NA15 or the
NCOP.16
It is important to note that, whether in the NA or the NCOP, the
democratic link between voters and the legislature is mediated by political
parties. This means in practice a person cannot become a member of one of
the Houses of the national legislature unless the person is a member of a
political party. The Constitution thus establishes not only a parliamentary
system of government in which the majority party in the NA forms a
government, but also a system of party government. This is because the
system cannot function in the absence of political parties.17
 Party government is usually defined as a system of government in which
political parties have a decisive influence on the way in which the
government is composed, on government policy and on the actions of the
elected representatives in the legislature.18 Through a mixture of
conventions and traditions inherited from British constitutional law and the
effects of the electoral system employed to select members of the NA,
political parties and their leaders are extremely powerful in South Africa
and loom large in any discussion of the composition and functioning of the
national legislature. Despite the important role played by political parties,
the Constitution (as well as national legislation) 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 (who might not serve
in the legislature) and its representatives in the legislature or the
executive.19 Thus it is unclear to what extent political party leaders can
‘micromanage’ their members in the legislature and the executive and
whether the extraparliamentary leadership of a political party can dictate to
its members what they must say and how they should act in the legislature
or executive.

CRITICAL THINKING

The rights of citizens as members of political

parties
The relationship between political parties and their leaders,
on the one hand, and the elected representatives of
political parties serving in Parliament, on the other hand, is
not clearly defined in the Constitution. However, in
Ramakatsa and Others v Magashule and Others 20 the
Constitutional Court affirmed the strong link between
internal party democracy and the right of citizens to take
part in the political process and to vote in elections. Thus
Yacoob J stated that:
 the right to participate in the activities of a political party confers
on every political party the duty to act lawfully and in accordance
with its own constitution. This means that our Constitution gives
every member of every political party the right to exact compliance
with the constitution of a political party by the leadership of that
party.21

Our democracy is founded on a multiparty system of

government. However, unlike the electoral system in place
in the United Kingdom and in South Africa before 1994
(based on geographical voting constituencies), the present
electoral system for electing members of the NA and of the
provincial legislatures must ‘result, in general, in
proportional representation’.22 This means a person who
intends to vote in national or provincial elections must vote
for a political party registered for the purpose of contesting
the elections and not for a candidate. It is the registered
party that nominates candidates for the election on regional
and national party lists. Political parties are therefore
indispensable conduits for the enjoyment of the right to
vote in elections.
If a person chooses to become a member of a political
party and wants to take part in its internal elections, that
person has a right to do so in accordance with the rules of
that party. The exercise of the right is protected not only
against external interference but also against interference
arising from within the party. Although it is left largely to
political parties themselves to regulate how they deal with
internal elections, political parties may not adopt
constitutions which are inconsistent with the right of
citizens to join political parties and to participate in their
activities. This means that the constitution of a political
party that limits or extinguishes the rights of members of
that party freely and fairly to take part in its internal
elections may well be declared invalid by a court as being
in breach of section 19 of the Bill of Rights.
As we have seen, in practical terms political parties and their leaders hold
enormous power over elected members of the legislature in South Africa.
There are four interrelated reasons for this:
• First, we inherited our system of parliamentary government from Britain.
In this system the support of the majority party in Parliament is required
to form the government.23 Thus, the executive requires the continued
support of the majority of members of the legislature to survive. This
provides a strong incentive to members of the legislature to ‘toe the party
line’, regardless of any differences an individual member of the
legislature may have with the decisions or actions of the political party
leadership. If members of the governing party fail to respect party
discipline and vote with opposition parties and against the majority party,
and the government loses a vote in Parliament, this can erode the
democratic legitimacy of the government and can even lead to the fall of
that government.
• Second, we also inherited the convention of strict party discipline from
the Westminster system associated with the system of parliamentary
government.24 This convention places severe restrictions on individual
Members of Parliament (MPs) to disobey party leaders when they
engage in legislative or executive action. The convention of strict party
discipline was applied in pre-democratic South Africa in the Westminster
Parliament as well as in the tricameral Parliament. When the new
democratic system replaced the old system, the convention of strict party
discipline was retained. Thus, this convention remains intact in
democratic South Africa and forms part of the parliamentary culture.
• Third, the internal culture of South African political parties places great
emphasis on internal party discipline. This type of internal culture values
and rewards party members who demonstrate loyalty to the party and the
decisions democratically arrived at by that party. It also values respect
for the leadership of the party and rewards those who display such
respect.25 At its most extreme, such a culture can be said to be one of
democratic centralism. This allows internal party debate on an issue until
the party has made a decision on that issue. Once the decision has been
taken, all members of the party are required to support the decision and
 are not allowed to criticise that decision or act in a way that would
undermine the authority of the party and the decision taken.
• Last, the electoral system in South Africa assists party leaders to enforce
strict discipline among members of the legislature. This is because, as we
shall see, members of the legislature depend on the support of their
various political parties to get elected to the legislature and can also
easily be removed from the legislature by their respective political
parties. Accordingly, members of the legislature are, to some extent,
beholden to the leadership of their respective political parties and to the
party machinery to retain their positions. This means that the members of
the legislature are not free to act as they see fit in fulfilling their various
duties as members of the NA or the NCOP. Once the political party to
whom a legislator belongs has made a decision on a pertinent issue being
considered by the legislature, the members of that party are usually
bound by that decision and must follow it. For example, if a political
party has decided to vote in favour of a Bill before Parliament and has
instructed its legislators accordingly, they cannot refuse to vote for the
Bill because for some reason or another they oppose the Bill. The
members of that political party will usually be required to support the
Bill and vote in favour of it even if a member disagrees with the position
taken by his or her political party.26 The situation is more fluid and
complex in cases where the political party has not taken a final public
stance on an issue being considered by the legislature or where members
of the legislature are legally expected to fulfil their constitutional duty to
consider and pass legislation, to hold the members of the executive
accountable and to oversee the work of the executive in a diligent and
responsible manner.
It is imperative to understand this 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.

PAUSE FOR REFLECTION

Difficulties faced by MPs who must both fulfil
their constitutional obligations while also toeing
the party line
Section 5.4 of the Constitution of the African National
Congress (ANC) states:
ANC members who hold elective office in any sphere of
governance at national, provincial or local level are required to be
members of the appropriate caucus, to function within its rules and
to abide by its decisions under the general provisions of this
Constitution and the constitutional structures of the ANC.27

Members who fail to adhere to this injunction can be

disciplined and punished, and such punishment could
include suspension or expulsion from the party.28 Many
other political parties in South Africa have roughly similar
provisions to assist the party to enforce its discipline on its
elected members.
In 2011, when members of the NA were called on to vote
on a controversial Bill, the Protection of State Information
Bill, one ANC member of the NA abstained from voting and
another left the chamber just as votes were being cast to
avoid having to vote for a Bill which they did not support.
The ANC then announced that it would institute disciplinary
proceedings against these two MPs for ‘ill-discipline’.29
This move was not surprising as political parties in South
Africa usually enforce strict party discipline and require
MPs to support decisions taken by the parliamentary
caucus of that political party, including decisions on
whether to support a piece of legislation or not.
In another case in 2010, the chairperson of the NA
Committee on Defence and Military Veterans was removed
from his post by the governing party after insisting that the
then Minister of Defence and Military Veterans should
account to that committee for the work done in her
department in a manner that displeased the Minister.30
 These events illustrate the difficulties faced by individual
MPs who must both fulfil their constitutional obligations to
hold the executive to account and to pass constitutionally
valid and appropriate legislation on the one hand while also
being required to toe the party line on the other hand.

4.2 General rules regarding the operation

of Parliament

4.2.1 Introduction
The NA and the NCOP have the power to determine and control their own
internal arrangements, proceedings and procedures.31 The Constitution
authorises the NA and the NCOP to make joint rules and orders concerning
the joint business of the two Houses.32 The Constitution also authorises the
two Houses to make rules separately regarding their own operations.33 It
also requires the NA and NCOP to make rules and orders to provide for the
composition, powers and functioning of committees.34 While Parliament
can make such rules, these rules have to comply with and give effect to the
provisions of the Constitution. Rules that clash with any section of the
Constitution can therefore be declared invalid by a court of law.35 Both
Houses of Parliament and their committees have wide-ranging powers not
dissimilar from a court of law and can summon any person, including the
President and Cabinet Ministers, to appear before them to:
• give evidence under oath or affirmation, or to produce documents
• require any person or institution to report to it
• compel, in terms of national legislation or the rules and orders, any
person or institution to comply with a summons or requirement to
produce documents
• to receive petitions, representations or submissions from any interested
persons or institutions.36
Usually, the relevant committee will request a witness to appear before it to
answer questions and to produce any documents required, or institutions or
individuals will request to make written and oral submissions to a
committee. If a witness refuses to appear after being asked to do so by a
committee, that witness can be summonsed to do so and can ultimately be
compelled to appear and to answer questions. However, the Rules of the
National Assembly 37 make it clear that this power should be exercised
sparingly and prohibits any committee from summonsing a witness without
first having satisfied the Speaker that the evidence of such witness will be
material to the enquiry.38
It is therefore clear that the two Houses of Parliament have wide powers
to fulfil their mandates in the best way chosen by each of them. However,
there are at least three distinct ways in which these powers are curtailed by
the Constitution:
• First, both Houses are required to act in an open and transparent manner
and cannot make Rules that would extinguish the constitutional
requirement of openness.
• Second, members of both Houses as well as Cabinet members who
appear before them enjoy certain privileges which cannot be curtailed by
Parliament or anyone else.
• Third, both Houses are required to facilitate public involvement in their
legislative and other processes.

4.2.2 Openness and transparency in Parliament

The Constitution requires both the NA and the NCOP to conduct their
business in an open manner, and hold their sittings and those of their
committees in public.39 However, reasonable measures may be taken to
regulate public access, including access of the media, to Parliament and its
committees, and to provide for the searching of any person and, where
appropriate, the refusal of entry to or the removal of any person.40 The NA
and the NCOP 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.41 Rule 40 of the
Rules of the NA further regulates the possible limits on the openness and
transparency of the NA by stating:
[t]he power to admit strangers to the precincts of this
House or an extended public committee or an
appropriation committee of this House, and the places
set apart for them in a Chamber, shall vest in the
Speaker, subject to the provisions of the Constitution.42
This means that normally it will not be allowed to hold a sitting of the NA
or the NCOP or any of its committee meetings or other business of the NA
or NCOP in secret or to prevent certain individuals from attending these
events. These provisions entitle the public to access the proceedings of the
NA and NCOP and their committees. In Doctors for Life International v
Speaker of the National Assembly and Others, the Constitutional Court has
hinted that non-compliance with these provisions ‘would have grave
implications for the validity of any conduct that passes a law. It is a manner
and form provision equivalent to the provision for a quorum, and the
number of votes required to take a decision’.43 This means that where the
media or ordinary members of the public are excluded from committees or
from the plenary session of the NA while it is considering a particular Bill,
the Court might well declare the passing of such a Bill unconstitutional.

PAUSE FOR REFLECTION

Access to Parliament is a right not a privilege

This is an extract from an opinion piece written by Mbete
and February:
While Parliament has many failings, its committees have always
been open to the public. Yet it is easy to forget that the right the
public has to attend committee meetings is granted by the
Constitution and is not a privilege granted by Parliament, its
presiding officers or its bureaucracy.

Last week, Parliament took a retrogressive step when nine

members of the Right2Know campaign were prevented from
 attending a meeting of the ad hoc committee on the Protection of
Information Bill. The bill has been the subject of controversy as the
civil society campaign against the bill and the, at times, flawed
processes of the ad hoc committee gains momentum. The
members were informed at access control that they were not
allowed to enter Parliament as they were ‘banned’. They were
allowed into Parliament after nearly two hours, and the threat of
court action, by which time the meeting had ended. The Speaker’s
office says it was a ‘misunderstanding’.

However, a press statement released by Parliament on March 31

cited the Right2Know silent protest (in which members of the
campaign donned masks depicting State Security Minister
Siyabonga Cwele) on February 15 as the reason the delegation was
refused entry. The statement said ‘security officials took
precautionary security action by denying entry’, ostensibly to
prevent another protest. The statement does not deny the
Right2Know campaign has been banned from entering Parliament.

The Right2Know campaign is a coalition of 400 civil society

organisations and 12 000 individuals. A ban of campaign members
from Parliament is in effect a ban of civil society more generally. It
is the arbitrariness of Parliament’s action that should concern all
who believe an open democracy is our right. Parliament has yet to
provide details of who gave the security official the power to
restrict access to the committee meeting. Who gave the instruction
to ‘ban’ members from the committee meeting and on what
grounds? Does a list exist of those ‘banned’ from Parliament? And
if so, will those affected be granted access to such a list?44

After the writing of this piece the Right2Know campaigners

were allowed back into the committee and the alleged ‘ban’
was therefore ‘rescinded’. If the ban had not been
rescinded, the legality of the passing of the Bill which was
being discussed at the time may well have called into
question. This incident illustrates that parliamentary
officials must take care not to act in a way that may render
the procedure for the passing of legislation unlawful.

4.2.3 The powers and privileges of Members of

Parliament
The power of Parliament to determine its own procedures is not only
limited or qualified by the constitutional requirements regarding openness,
accountability and transparency as well as specific duties imposed on
Parliament by the Constitution.45 It is also limited by the provisions
regarding the privileges enjoyed by Cabinet Ministers, Deputy Ministers
and members of the NA and NCOP with regard to anything they say or do
in the NA or the NCOP or one of its committees. Parliament and its
members thus enjoy parliamentary privilege so that they are able to
perform their functions without outside hindrance or interference.46
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.
Without this protection, MPs would be handicapped in performing their
parliamentary duties. In addition, the authority of Parliament itself in
confronting the executive and as a forum for expressing the anxieties of
citizens would be correspondingly diminished.47

PAUSE FOR REFLECTION

Parliamentary privilege does not extend to

personal matters
In Dikoko v Mokhatla,48 the respondent, who was the
municipal manager of the Southern District Municipality in
the North West Province, sued the applicant, who was the
mayor of the same municipality, for defamatory remarks the
applicant had made while giving evidence to the Standing
Committee on Public Accounts of the North West Provincial
Legislature. In his defence, the applicant argued that he
was protected by section 28 of the Local Government:
Municipal Structures Act49 which confers the same
privileges and immunities on municipal councillors that the
Constitution confers on MPs.
 The Constitutional Court rejected this argument on the
grounds that the defamatory statements made by the
applicant did not form a part of the legitimate business of
the Southern District Municipality, but rather a part of his
own personal business. In arriving at this decision,
however, the Court set out the purpose underlying the
defence of parliamentary privilege in a constitutional
democracy. In this respect, the Court held that:49
[i]mmunising the conduct of members from criminal and civil
liability during council deliberations is a bulwark of democracy. It
promotes freedom of speech and expression. It encourages
democracy and full and effective deliberation. It removes the fear of
repercussion for what is said. This advances effective democratic
government.50

Parliamentary privilege was developed in the British context to protect MPs

from interference by the monarch. In the British context, parliamentary
privileges are to be found chiefly in ancient practice, asserted by Parliament
and accepted over time by the Crown and the courts as the law and custom
of Parliament.51 What the House of Commons originally claimed as
customary rights in the course of repeated efforts to assert them eventually
hardened into legally recognised privileges.52 These privileges are now
contained in the South African Constitution. Thus, Cabinet members,
Deputy Ministers and members of the NA are guaranteed the freedom of
speech in both the NA and the NCOP as well as in its committees, subject
only to their rules and orders.53 Members are also not liable to civil or
criminal proceedings, arrest, imprisonment or damages for anything that
they have said in, produced before or submitted to the NA or any of its
committees, or anything revealed as a result of anything that they have said
in, produced before or submitted to the NA or any of its committees.54
Because the Constitution establishes a constitutional democracy and
entrusts the judiciary with the power to enforce the Constitution, these
privileges do not preclude the judiciary from enquiring into whether the
procedures or limitations adopted by Parliament in this regard comply with
the various provisions of the Constitution.
In South Africa, parliamentary privilege came under the spotlight in
Speaker of the National Assembly v De Lille MP and Another.55 The case
arose from an incident in the NA in which one of the opposition members,
Ms Patricia de Lille, stated that she had information that 12 members of the
governing party had been spies for the apartheid government. When
challenged, she mentioned eight names, some of which referred to people
who were not members of the NA. The Speaker ruled that it was
‘unparliamentary’ to refer to some members of the NA as ‘spies’ and
ordered her to withdraw her remarks, which she did.56 An ad hoc
committee of the NA recommended that Ms De Lille be directed to
apologise and suspended for 15 parliamentary working days.57 The NA
adopted this recommendation.58
Ms De Lille had earlier successfully challenged the constitutionality of
her suspension in the Cape High Court.59 The Speaker argued that the NA
had exercised its parliamentary privilege to control its own affairs and that
the exercise of parliamentary privilege is not subject to judicial review. For
this argument, the Speaker relied on section 5 of the Powers and Privileges
of Parliament Act.60 This section provides that a court shall stay
proceedings before it if the Speaker issues a certificate to the effect that the
matter in question is one which concerns the privilege of Parliament. The
High Court held that, under a supreme Constitution, the exercise of
parliamentary privilege is subject to judicial review. Hlophe J, as he then
was, stated:
[T]he National Assembly is subject to the supremacy of
the Constitution. It is an organ of state and therefore it is
bound by the Bill of Rights. All its decisions and acts are
subject to the Constitution and the Bill of Rights.
Parliament can no longer claim supreme power subject
to limitations imposed by the Constitution. It is subject
in all respects to the provisions of our Constitution. It
has only those powers vested in it by the Constitution
 expressly or by necessary implication or by other statutes
which are not in conflict with the Constitution. It follows
therefore that Parliament may not confer on itself or on
any of its constituent parts, including the National
Assembly, any powers not conferred on them by the
Constitution expressly or by necessary implication.61
The Judge concluded:
The nature and exercise of parliamentary privilege must
be consonant with the Constitution. The exercise of
parliamentary privilege, which is clearly a constitutional
power, is not immune from judicial review. If a
parliamentary privilege is exercised in breach of
constitutional provisions, redress may be sought by an
aggrieved party from law courts …62
The High Court held that Ms De Lille’s suspension constituted an
unjustified infringement of her constitutional rights to freedom of speech
(section 16), administrative justice (section 33) and access to courts
(section 34).63
The Supreme Court of Appeal upheld the decision of the Cape High
Court, although on slightly narrower grounds.64 Like Hlophe J, Mahomed
CJ reasoned that section 58(1) of the Constitution expressly guarantees
freedom of speech in the NA, subject only to its rules and orders. The threat
that a member of the NA may be suspended for something said in the NA
inhibits freedom of expression in the NA and must therefore adversely
affect that guarantee.65 Although section 58(2) states that other privileges
and immunities of the NA may be prescribed by national legislation,66 it
must not be interpreted to detract from that guarantee of freedom of
expression. What section 58(2) does is to authorise national legislation
which will itself clearly and specifically articulate the ‘privileges and the
immunities’ of the NA which affect the specific guarantee of free speech for
members in the NA. There was furthermore nothing in the ‘rules and
orders’ of the NA which qualified in any relevant way the right to freedom
of speech in the NA guaranteed by section 58(1). Further, there is no
constitutional authority for the NA to punish any member via suspension in
this context.67 As ‘the right of free speech in the Assembly protected by
section 58(1) is a fundamental right crucial to representative government in
a democratic society … [i]ts tenor and spirit must conform to all other
provisions of the Constitution relevant to the conduct of proceedings in
Parliament’.68 The NA therefore had no constitutional authority to suspend
Ms De Lille.69 The Rules have since been amended to provide the Speaker
or Deputy Speaker with the authority to suspend a member for a period of
between five and 20 parliamentary working days.70

4.2.4 Public involvement in the legislative and other

processes of the National Assembly and the National
Council of Provinces
As we have seen, the South African Constitution establishes a democratic
system of government with both representative and participatory elements.
Part of the participatory aspect of democracy is the requirement that the NA
and the NCOP should facilitate public involvement in the legislative and
other processes of Parliament.71 Parliament can therefore not pass
legislation or engage in other important processes without considering the
need to facilitate some form of public participation. 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 some way or another in those activities. To this end, Parliament
has taken steps to make its bodies and processes more accessible to the
public, to build its profile as a key institution of democracy and to mobilise
the media to provide information to the public about Parliament.72
In the negotiations leading to the establishment of the 1996 Constitution,
it was clear that South Africa’s democracy would emphasise active
participation by the citizenry.73 The Reconstruction and Development
Programme, which was the lynchpin of government policy in the first few
years after the advent of democracy, captured this new openness, stating:
 Democracy for ordinary citizens must not end with
formal rights and periodic one-person, one-vote
elections. Without undermining the authority and
responsibilities of elected representative bodies
(Parliament, provincial legislatures, local government)
the democratic order we envisage must foster a wide
range of institutions of participatory democracy in
partnership with civil society on the basis of informed
and empowered citizens and facilitate direct democracy
… social movements and community based organisations
are a major asset in the effort to democratize and
develop our society.74
Participatory democracy simply means that individuals or institutions must
be given an opportunity to take part in the making of decisions that affect
them.75 As such, public participation is a voluntary activity by which
members of the public directly or indirectly engage with members of the
legislature to provide input to the legislature during the law-making
process.76 The essence of public participation can be distilled by focusing
on the various strategies that are the most important measures for public
involvement in the legislative process. These include but are not limited to
the following:
• 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.
• Members of the public can raise issues at the constituency offices of their
elected representatives, who then raise these issues in the legislature on
their behalf.
• Petitions allow individuals or groups to raise issues in a formal way
without having to go through a particular member of the legislature.
• 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.77
In several cases78 the Constitutional Court affirmed the principle that, in
certain circumstances, where Parliament failed to take reasonable steps to
facilitate public involvement in the law-making process, it would have
failed to comply with section 59(1) or section 72(1) of the Constitution
respectively,79 and any law enacted in such a procedurally flawed way
would then be null and void and of no effect.80 The leading case on this
point is the 2006 case of Doctors for Life.81 This case dealt with the
enactment by Parliament of four health statutes, among others, relating to
the choice on termination of pregnancies. The applicants complained that
during the legislative process, the NCOP and the provincial legislatures did
not comply with their constitutional obligations to facilitate public
involvement as required by section 72(1)(a) and 118(1)(a) respectively.
Ngcobo J (for the majority) stated:
In the overall scheme of our Constitution, the
representative and participatory elements of our
democracy should not be seen as being in tension with
each other as they are mutually supportive. General
elections, the foundation of representative democracy,
would be meaningless without massive participation by
the voters. The participation by the public on a
continuous basis provides vitality to the functioning of
representative democracy. It encourages citizens of the
country to be actively involved in public affairs, identify
themselves with the institutions of government and
become familiar with the laws as they are made. It
enhances the civic dignity of those who participate by
enabling their voices to be heard and taken account of. It
promotes a spirit of democratic and pluralistic
accommodation calculated to produce laws that are
likely to be widely accepted and effective in practice. It
strengthens the legitimacy of legislation in the eyes of the
people. Finally, because of its open and public character
it acts as a counterweight to secret lobbying and
influence peddling. Participatory democracy is of special
 importance to those who are relatively disempowered in
a country like ours where great disparities of wealth and
influence exist.82
The democratic government that is contemplated in the Constitution is thus
both representative and participatory as discussed in chapter 2 of this book.
It is also one which is accountable, responsive and transparent, and makes
provision for the public to participate in the law-making process.83 ‘Our
constitutional framework requires the achievement of a balanced
relationship between representative and participatory elements in our
democracy.’ 84 Although ‘the legislature will have considerable discretion
in determining how best to achieve this balanced relationship’,85 this
discretion is not unfettered. What is required will vary from case to case but
the test will be whether the legislature had acted reasonably or not.86 The
Court stated that ‘reasonableness is an objective standard which is sensitive
to the facts and circumstances of a particular case’.87 In other words, it is
context specific. The factors that will be used to determine reasonableness
are as follows: 88
• ‘The nature and importance of the legislation and the intensity of its
impact on the public’.
• What is practically possible, with reference to time and expense, which
relate to the efficiency of the law-making process. The Court noted,
however, that ‘the saving of money and time in itself does not justify
inadequate opportunities for public involvement’.
• What Parliament itself considered ‘to be appropriate public involvement
in the light of the legislation’s content, importance and urgency’.
This means Parliament has a duty, first, ‘to provide meaningful
opportunities for public participation in the law-making process’ and,
second, ‘to take measures to ensure that people have the ability to take
advantage of the opportunities provided’.89 Parliament has a positive duty
to take practical steps to facilitate public involvement for everyone from all
spheres of life regardless of their socio-economic circumstances. ‘They
must provide notice of and information about the legislation under
consideration and the opportunities for participation that are available’ 90 to
ensure citizens have an opportunity for effective participation in the
process.

CRITICAL THINKING

The role of voters in the law-making process

In a minority decision in the Doctors for Life case, Yacoob J
expressed a different understanding of the nature of the
democracy established by the South African Constitution,
focusing on the importance of political parties and the role
of elected representatives in Parliament.91 According to
this view, MPs represent the people because they are
chosen by the people. When MPs make decisions,
therefore, they are not making decisions in their own
interests but rather in the interests of the people. The
decisions made by Parliament are not simply the decisions
of the MPs, but rather the decisions of the people:
In passing legislation or in conducting any other activity, members
of provincial legislatures and the National Assembly do not act on
their own whims but represent the people of this country. To
undermine these representatives is to undermine the political will
of the people and to negate their choice at free and fair elections.
Provincial representatives on the NCOP are mandated by the
provincial legislatures in their capacities as representatives of the
people. They are therefore mandated by the people in the same way
as the President is elected by the people when the National
Assembly elects him. Constitutionally speaking, it is the people of
our country who, through their elected representatives pass
laws.92

Apart from the correctness of the various technical

arguments raised by Justice Yacoob in favour of his
interpretation of the Constitution, a broader question arises
about the role of voters in the law-making process. This
question is whether the view taken by Ngcobo J (for the
 majority) or that of Yacoob J (for the minority) would
produce a more effective and more democratically
accountable and responsive Parliament. On the one hand,
it may be argued that MPs who belong to political parties,
especially where the party has a majority that is not
immediately threatened, may well be unresponsive to the
views of the electorate and may not, in fact, pass laws
supported by the electorate. On the other hand, it may be
argued that voters have the right to vote for a different
party if they disagree with the support of their preferred
party for a specific law. Voters only lend their vote to a
political party for five years at a time and can always vote
for a different party if the MPs representing their former
choice disappoint them. In this view, political parties play a
pivotal role in our democracy and should not be
undermined by placing constitutional obligations on their
representatives to consult incessantly with voters between
elections.

4.3 The National Assembly

4.3.1 The composition of the National Assembly

As noted above, the Constitution establishes a bicameral Parliament.93 In
terms of section 42(1) of the Constitution, Parliament consists of two
Houses, namely the National Assembly (NA) and the National Council of
Provinces (NCOP). The NA consists of between 350 and 400 members
elected through an electoral system based on a national common voters roll
that is designed to produce, in general, proportional representation.94 Since
the exact size of the NA has to be determined by an Act of Parliament,95
Schedule 3 of the Electoral Act 96 has fixed this number at 400. 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’.97
As we have seen, political parties play an important role in decisions
about who serve as legislators in the NA. The manner in which decisions
are made about how the millions of votes cast by voters are translated into
seats for each political party in the legislature (and the role played by
political parties in this process) is closely related to the electoral system
adopted in a country. There are various forms of potential electoral systems
through which citizens of a country can exercise their right to vote for
political representatives.98 According to Currie and De Waal:
[a]n electoral system sets out the rules for electing the
political representatives. It consists of a body of rules
concerning such matters as the franchise, the method of
voting, the frequency of elections, the manner in which
the number of votes is translated into the number of
representatives [or seats] in the legislature, the
qualification and nomination of candidates, and the
determination and declaration of the results of an
election.99
Members of the NA are elected in terms of a closed list proportional
representation electoral system.100 This system requires each political
party before an election to nominate a list of candidates, ranking them in
order of preference. Parties submit their lists to the Electoral Commission
when they register to take part in the election. Voters vote for a political
party and not for individual candidates.101 A political party will then be
allocated the number of seats in the NA equal to the percentage of votes it
received in the election. For example, if a party obtained 50% of the votes,
it will be allocated 200 of the 400 seats in the NA and the first 200 names
on the party’s electoral list will become members of the NA. This means
that the higher up on a political party’s electoral list a person is ranked, the
more likely it is that he or she will be elected to the NA.
Decisions on who is ranked where on a political party’s electoral list can
be made democratically or party leaders can decide on this in an
undemocratic manner.102 Political parties have some discretion in making
decisions about internal decision making and processes as political parties
‘are best placed to determine how members would participate in internal
activities’.103 The constitution of each political party regulates how such
decisions are taken. However, political parties may not adopt constitutions
which are inconsistent with section 19 of the Constitution.104 If the
constitution of a political party fails to provide for the free participation of
members in its activities, that constitution could be declared invalid.105
Regardless of how political parties compile their electoral lists, it would be
surprising if ambitious members of a political party do not manoeuvre to
ensure placement high up on such an electoral list.
The closed list proportional representation electoral system has both
advantages and disadvantages.106 Advantages include the fact that it
reflects the wishes of the voters more accurately than most other electoral
systems. This is because the percentage of seats allocated to each party is
proportional to the percentage of the votes cast for it and there are very few
wasted votes.107 This makes it much easier for smaller parties to be
represented in the NA. In the 2009 general election, for example, a party
needed to gain 44 092 votes or 0,25% of the total number of votes cast to
obtain a seat in the NA. In addition, the proportional representation
electoral system also eliminates the possibility of the artificial drawing of
boundaries – so-called gerrymandering108 – to dilute political support in
certain constituencies.
Apart from the advantages set out above, closed list proportional
representation systems usually produce more inclusive legislatures and
ensure a relatively high representation for marginalised or previously
discriminated groups such as women as well as for minorities. For example,
after the 2009 election, more than 42% of the members of the NA were
women, placing South Africa in the top 10 countries in the world as far as
the representation of women is concerned.109 A further advantage is the
fact that the system limits ‘pork-barrel’ politics. Pork-barrel politics is a
system of politics in which members of the legislature attempt to buy the
support of voters in their constituencies by pressuring the legislature and the
executive to spend public money in their constituencies on projects such as
clinics, roads, schools and so on irrespective of whether their constituents
actually need these goods and services or not. In a closed list proportional
representation system, the members of the legislature do not have
constituencies and, consequently, will be less tempted to engage in pork-
barrel politics. Finally, the system is also said to be simple and easy to
administer.

Table 4.1 Representation of women in the NA110

Election year Total seats Women’s seats % women

2009 400 172 43,00

2004 400 131 32,75

1999 400 120 30,00

1994 400 111 27,74

However, there are also major disadvantages associated with the system:
• First, a closed list proportional representation electoral system 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 as a whole rather
than individual MPs has to account to voters at the next election.
Individual MPs do not lose their seats because of the anger of voters but
because they have lost the support of the leaders of the political party
they serve.111
• Second, the closed list proportional representation system potentially
gives much power to the leaders of a party who may be able to determine
who appears on electoral lists and where on those lists they are ranked.
This means that the leaders of political parties may have disproportionate
influence over the way in which individual MPs behave.
• Third, the system 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 other parties. A
coalition government may find it difficult to agree on all aspects of a
joint programme of action.112

PAUSE FOR REFLECTION

The closed list proportional representation

system versus the first-past-the-post system
The closed list proportional representation system that
operates in South Africa in relation to the election of NA
members is often contrasted with the first-past-the-post
system, also known as the winner-take-all system or the
plurality system.113 This latter system is followed in the
United Kingdom, the USA and was followed in South Africa
prior to 1994 during the colonial and apartheid eras. The
aim of the system is to create a ‘manufactured majority’,
that is, to exaggerate the share of seats for the leading
party in order to produce an effective working
parliamentary majority for the government. It
simultaneously penalises minor parties, especially those
whose support is spread out across the country and not
concentrated in a specific area.
In the first-past-the-post system, the country is divided
into geographical single-member constituencies.114 Voters
in each constituency cast a single ballot for the candidate
of their choice. The candidate with the largest share of the
vote in each constituency is returned to Parliament. All the
other candidates of all the other political parties standing in
that constituency are not elected, leading to the ‘wasting’ of
all the votes cast for the non-winning candidates.115
The party with an overall majority of seats in the
legislature forms the government. In this winner-takes-all
model, the leading party receives a disproportionate
number of seats in the legislature, often gaining large
majorities even where far less than 50% of voters voted for
that party. Smaller parties get meagre rewards. The focus
is on effective governance, not representation of all
minority views.116
For example, in constituencies where the vote splits
almost equally three ways, the winning candidate may
have only 35% of the vote, while the other contestants get
34% and 31% respectively. In such an election, 64% of the
votes cast in that constituency would have been ‘wasted’.
Although two-thirds of voters supported other candidates,
the plurality of votes is decisive. This makes this system
less fair than the proportional representation system.
Another potential problem with this system is the danger
that the artificial drawing of constituency boundaries would
lead to gerrymandering, or dilution or imbalance of political
power or support in constituencies.117
However, because an individual may be voted into the
legislature only because he or she is more popular than the
party he or she represents, there is an incentive for
individual members of the legislature to be responsive to
the needs of voters in their constituency. They are thus – in
theory at least – more accountable to voters than to the
leadership of the political party they represent. Voters will
be more likely to know the member of the legislature
representing them and will be able to approach that person
with their problems and concerns.
It is often contended that South Africa should change
from the closed list proportional representation system and
use the first-past-the-post system. Others argue that South
Africa should move to a system that mixes the first-past-
the-post and the proportional representation system. This
could be done by allocating a large number of seats in the
NA – say 300 of the 400 – based on a first-past-the-post
model. The remaining 100 seats could be allocated from
 party lists to ‘top up’ the NA membership to achieve
proportional representation of political parties in Parliament
based on the percentage of votes received by each party.
This, it is argued, will ensure a closer link between
members of the NA and the voters they represent. It will
also weaken the power of party leaders over individual
MPs who will become more independent. However, it is
unclear whether this will be the case in South Africa,
especially if political party leaders retain the power to
decide who would represent the party in an individual
constituency. Because of the current dominance of one
political party and because of the concentration of support
for the main opposition party in certain geographical areas,
most MPs elected in constituencies would have ‘safe’ seats
and may well pay more attention to keeping the leaders of
their political party happy than attending to the concerns of
voters.118

Section 19(3) of the Constitution guarantees the right of every citizen to

vote. Children are not allowed to vote and in terms of the Constitution only
citizens who are above the age of 18 years qualify to vote.119 In giving
effect to the essence of the right to vote, the Constitution established the
Electoral Commission (also colloquially called the Independent Electoral
Commission) in terms of section 181(1)(f). The Commission is responsible
for managing ‘elections of national, provincial and municipal legislative
bodies in accordance with national legislation’, must ‘ensure that those
elections are free and fair’, and must, in as a short a time as is reasonably
possible, ‘declare the results of those elections within a period that must be
prescribed by national legislation’.120
The independence of the Electoral Commission is explicitly guaranteed
in the Constitution.121 The Constitutional Court pointed out in Independent
Electoral Commission v Langeberg Municipality 122 that although the
Electoral Commission is an organ of state as defined in section 239 of the
Constitution, the requirement that it be independent from the government
means that it cannot be said to be a department or an administration within
the national sphere of government over which Cabinet exercises authority.
The Electoral Commission – while a state institution – is not part of the
government as independence of the institution refers to independence from
the government.123
The independence of the Electoral Commission requires, first, financial
independence. As the Constitutional Court stated in New National Party v
Government of the Republic of South Africa and Others, ‘This implies the
ability to have access to funds reasonably required to enable the
Commission to discharge the functions it is obliged to perform under the
Constitution and the Electoral Commission Act.’ 124 This requires
Parliament to consider what is reasonably required by the Commission and
deal with requests for funding rationally in the light of other national
interests. Second, the Commission needs to enjoy 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. This means that the
Department of Home Affairs cannot tell the Commission how to conduct
registration and whom to employ. In short, the Commission cannot be part
of the national government in any manner.125
In August and Another v Electoral Commission and Others,126 the
Constitutional Court pointed out that the right to vote in section 19(2) of the
Constitution is unqualified. It therefore cannot be taken away from any
citizen arbitrarily or in a way that is not reasonable and justifiable in an
open and democratic society.127 Sachs J declared that the vote of each and
every citizen is a ‘badge of dignity and personhood. Quite literally, it says
that everybody counts’.128 The Court held that the right to vote ‘by its very
nature imposes positive obligations upon the legislature and the executive…
[and] … [t]his clearly imposes an affirmative obligation on the Commission
to take reasonable steps to ensure that eligible voters are registered’.129 In
the August case, the Court held that by omitting to take appropriate steps to
ensure that prisoners were able to register and vote in the national election,
the Commission had failed to comply with its obligations. The importance
of the right to vote was reaffirmed in New National Party where Yacoob J
stressed that the right to vote is fundamental to democracy and requires
proper arrangements to be made for its effective exercise.130

CRITICAL THINKING

Limitations on the constitutional right to vote

As a result of the judgment in August, and shortly prior to
the 2004 national elections, Parliament amended the
Electoral Act. As a result of these amendments, prisoners
who were serving a sentence of imprisonment without the
option of a fine were prevented from registering as voters
and from voting while in prison.131 In other words, they
were effectively disenfranchised.
The constitutionality of this amendment was questioned
in Minister of Home Affairs v National Institute for Crime
Prevention and the Re-integration of Offenders (NICRO)
and Others.132 The main issue in this case was whether
the amendments to the Electoral Act constituted a
justifiable limitation of the right to vote in terms of
section 36 of the Constitution. Government argued that its
rationale for the limitation of the right was to preserve the
integrity of the voting process.133 It was argued that voting
at a polling station entailed the use of mobile voting
facilities or special votes, both of which involved risks to
the integrity of the vote and required special measures to
counter these risks. The provision of these special
arrangements, it was argued, placed a strain on the
logistical and financial resources available to the Electoral
Commission.134 However, the Constitutional Court
disposed of the logistics and costs leg of this argument on
the basis that the state had failed to discharge its
 evidentiary burden in this regard.135 In this regard, the
Court indicated that:
[i]n the present case, however, it is not necessary to take this issue
further for the factual basis for the justification based on cost and
the lack of resources has not been established. Arrangements for
registering voters were made at all prisons to accommodate
unsentenced prisoners and those serving sentences because they
had not paid the fines imposed on them. Mobile voting stations are
to be provided on election day for these prisoners to vote. There is
nothing to suggest that expanding these arrangements to include
prisoners sentenced without the option of a fine will in fact place an
undue burden on the resources of the Commission. Apart from
asserting that it would be costly to do so, no information as to the
logistical problems or estimates of the costs involved were
provided by Mr Gilder. The Commission abided by the decision of
the Court. It lodged affidavits to explain its attitude to the Court,
and was represented by counsel at the hearing. It did not place any
information before the Court in regard to costs and logistics and
did not suggest that it would be unable to make the arrangements
necessary to enable all prisoners to vote.136

This judgment affirmed that while there may conceivably be

situations in which a person could be deprived of his or her
right to vote, such a limitation on the right to vote would
have to be justified by the state. The state would have to
show that the limitation was narrowly tailored to achieve an
important purpose.

The Constitutional Court also considered whether South Africans living

abroad have a right to vote. This was considered in Richter v The Minister
for Home Affairs and Others 137 and AParty and Another v The Minister
for Home Affairs and Others, Moloko and Others v The Minister for Home
Affairs and Another.138 The Court decided unanimously that South
Africans living abroad have a right to vote if they are registered. The Court
held that section 33 of the Electoral Act unfairly restricted the right to cast
special votes while abroad to a very narrow class of citizens. This section
was therefore declared unconstitutional and invalid.
 The implication of this judgment for the elections which were to be held
in April 2009 was that all citizens who were at that time registered voters,
and who would be out of the country on the date of the elections, would be
allowed to vote in the national, but not provincial, elections. This was
‘provided they give notice of their intention to do so, in terms of the
Election Regulations, on or before 27 March 2009 to the Chief Electoral
Officer and identify the embassy, high commission or consulate where they
intend to apply for the special vote’.139
Handing down the first of two separate judgments, O’Regan J held that
the right to vote had a symbolic and democratic value and those who were
registered should not be limited by unconstitutional and invalid limitations
in the Electoral Act.140 However, a second judgment by Ngcobo J found
that unregistered voters who were overseas could not vote.141 This was due
to the fact that the limitations of the right to vote of South Africans living
abroad, who did not fall within certain categories, had been in effect since
2003 and the applicants had not explained why they had challenged these
limitations so late. According to Ngcobo J:
… the applicants are the authors of their own
misfortune; they created the urgency. The registration
provisions of the Electoral Act have been in place since
2003. Voting by South African voters abroad in the 2004
elections was regulated by the amendment which was
introduced in 2003. The applicants have known since
then that they cannot vote. Their explanation for not
approaching a court much earlier is utterly
unsatisfactory.142
The cases discussed above are an indication of the values of the new
dispensation in ensuring the role of the electorate in relation to the
corresponding responsibility of the state to create an environment that is
conducive for everyone to ensure the advancement of the ideals of the new
democratic order.

4.3.2 Eligibility for election to the National Assembly

Once elected, a member of the NA will normally serve for a full term of
five years until the next election.143 However, a person may lose
membership of the NA if that person is no longer eligible to be a member of
the NA. In terms of section 47 of the Constitution, 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 the service of, the state and receive
remuneration for that appointment or service, other than:
• the President, Deputy President, Ministers and Deputy Ministers
• other office-bearers whose functions are compatible with the functions of
a member of the NA and have been declared compatible with those
functions by national legislation.
The following people are also not eligible to become or remain members of
the NA:
• permanent delegates to the NCOP or members of a provincial legislature
or a municipal council 144
• unrehabilitated insolvents 145
• anyone declared to be of unsound mind by a court of the Republic 146
• anyone who, after the Constitution took effect, is convicted of an offence
and sentenced to more than 12 months’ imprisonment 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 the Republic.147
Moreover, a member of the NA who is absent from the NA without
permission in contravention of the rules of the NA (presumably more than
15 days),148 or ceases to be a member of the party that nominated him or
her,149 will also automatically lose his or her seat in the NA.

4.3.3 Duration of the National Assembly, sittings and

its dissolution
The NA is elected for a term of five years.150 It will usually serve out this
five-year term, but there are at least two situations in which an election
could be held before the five-year term has elapsed:
• First, in terms of section 50(1) of the Constitution, the President ‘must
dissolve the NA if the Assembly has adopted a resolution to dissolve
with a supporting vote of a majority of its members; and three years have
passed since the Assembly was elected’. If this is done, ‘the President,
by proclamation, must call and set dates for an election, which must be
held within 90 days of the date the Assembly was dissolved’.151 This
means that a majority party in Parliament may strategically adopt such a
resolution to force a new national election to be held (without having to
impose a vote of no confidence in the government) in the last two years
of the life of the NA. They may wish to do so to ensure a political
advantage for their party by timing the election to fall around a time
when the party is particularly popular, say, after the national soccer team
has won the African Cup of Nations tournament or after the successful
staging of the Soccer World Cup.
• Second, in terms of section 50(2), where there is a vacancy in the Office
of President because the President passed away, resigned or was
removed from office by the NA in terms of section 89 or 102, and the
NA then fails to elect a new President within 30 days after the vacancy
occurred, the Acting President must dissolve the NA and new election
must be called within 90 days.152 This will occur in cases where no one
party commands a majority of seats in the NA, the coalition of parties
disintegrates and the parties cannot agree on forming a new coalition.
Where one party commands more than 50% of the seats in the NA, it
will be able to enforce party discipline to ensure that the majority party
elects a new President before the 30-day period stipulated by the
Constitution elapses.
After an election, the first sitting of the NA must take place not more than
14 days after the election results are finalised on a date determined by the
Chief Justice.153 The President will be elected from among the members
elected to the NA at this sitting.154 At the same sitting, the NA will also
elect a Speaker and a Deputy Speaker from among its members.155 The
NA may otherwise determine the time and duration of its other sittings and
its recess periods.156 An exception is that the President may summons the
NA to an extraordinary sitting at any time to conduct special business.157
Sittings of the NA are permitted at places other than the seat of Parliament,
which is currently in Cape Town, only ‘on the grounds of public interest,
security or convenience, and if provided for in the rules and orders of the
Assembly’.158 NA Rule 24 requires the Speaker to consult the Leader of
the Assembly and the Chief Whip of each party represented in the NA
before directing that the Assembly sit somewhere other than in Cape
Town.159

4.3.4 Powers and functioning of the National Assembly

The NA – unlike the NCOP representing the interests of separate provinces
– is elected to represent the people of South Africa as a whole. According to
section 42(3) of the Constitution, the NA has four main tasks:
• The NA elects the President.
• It serves as a national forum for public consideration of issues.
• It considers and passes legislation (along with the NCOP).
• It scrutinises and oversees executive action, holding the executive
accountable.
In exercising its legislative power, the NA may consider, pass, amend or
reject any legislation before the Assembly, and initiate or prepare
legislation, except money Bills.160 The NA must provide for mechanisms
to ensure that all executive organs of state in the national sphere of
government are accountable to it. The NA must also maintain oversight of
the exercise of national executive authority, including the implementation
of legislation, and any organ of state.161 We shall return to the exercise of
these powers below.162
Unless the Constitution specifically requires otherwise, section 59 of the
Constitution controls quorum requirements for when the NA takes
decisions. It distinguishes between Bills or amendments to Bills and ‘any
other question[s]’ which may come before the NA for a vote. The NA may
proceed with its business irrespective of the number of members
present.163 However, when the NA takes a vote on a Bill (that is, a piece of
draft legislation), a majority of the members (at least 201 members) of the
NA must be present.164 At least one-third of the members (134 members)
must be present before a vote may be taken on any other question before the
NA.165 If there is no prescribed quorum when a question is put for decision
and if after an interval of five minutes, during which time the bells must be
rung, there is still no quorum, the presiding officer (the Speaker or Deputy
Speaker) may suspend the proceedings or postpone the decision of the
question.166
Most questions before the NA are determined ‘by a majority of the votes
cast’ by the members present.167 In certain circumstances, however, the
quorum and voting requirements are set at a higher threshold. For example,
the NA can only remove the President from office (impeachment) or amend
provisions of the Constitution (other than section 1) with a ‘supporting vote
of at least two-thirds of its members’.168 An amendment to section 1 of the
Constitution requires a ‘supporting vote of at least 75 per cent’ of the
members of the NA.169
The member of the NA presiding at a meeting of the NA, usually the
Speaker or Deputy Speaker, has no deliberative vote, but is required to cast
a deciding vote ‘when there is an equal number of votes on each side of a
question’.170 The presiding member may cast a deliberative vote when a
matter requiring a two-thirds majority to pass is before the NA.171 Under
section 54 of the Constitution, ‘[t]he President, and any member of the
Cabinet or any Deputy Minister who is not a member of the National
Assembly, may, subject to the rules and orders of the Assembly, attend and
speak in the Assembly, but may not vote’.172 The Constitution further
requires the NA to provide for ‘mechanisms to ensure that all executive
organs of state in the national sphere of government are accountable to it;
and to maintain oversight of the exercise of national executive authority,
including the implementation of legislation; and any organ of state’.173
As far as the practical functioning of the NA is concerned, three
important issues arise:
• First, under section 57(1)(a) and (b) of the Constitution, the NA ‘may
determine and control its internal arrangements, proceedings and
 procedures; and may make rules and orders concerning its business, with
due regard to representative and participatory democracy, accountability,
transparency and public involvement’. These powers of the NA are
limited in the ways discussed above.
• Second, the Speaker or, in his or her absence, the Deputy Speaker,
presides over the NA. The primary public role of the Speaker is to
preside over debates in the NA. The Speaker is expected to be above
party politics and to fulfil his or her role impartially, demonstrating the
kind of impartiality expected of a judge.174 The Speaker is required to
keep discipline in the NA and must rule on any objections lodged by
members against the conduct of other members. The Speaker is also
(jointly with the Chair of the NCOP) the administrative head of
Parliament. As the custodian of the rights and privileges of its members,
the Speaker furthermore acts as the representative and spokesperson for
the legislature and has the power to give an undertaking on behalf of the
NA.175
• Third, members of the NA take part in public meetings of the NA where
they may ask questions of members of the Cabinet. The NA also
provides a platform for the President, members of Cabinet, party leaders
and MPs to make speeches. In addition, it is an arena where the political
parties debate the issues of the day. Finally, of course, members of the
NA vote formally to pass legislation. However, most of the serious work
of the NA is done in committees.
The establishment of committees is contemplated in section 57(2)(a) and
(b) of the Constitution and their number, jurisdiction, membership and other
details are fleshed out in the Rules of the Assembly.176 The most important
committees – the respective portfolio committees – are those set up to
process legislation emanating from each Cabinet portfolio and to oversee
the work done by the executive in each of these portfolios.177
Section 57(2)(b) of the Constitution requires that the Rules of the Assembly
provide for ‘the participation in the proceedings of the Assembly and its
committees of minority parties represented in the Assembly, in a manner
consistent with democracy’. The Constitutional Court has not yet given
clear guidance on what this might entail. However, a practice has developed
in the NA that political parties are entitled to be represented in committees
in substantially the same proportion as the proportion in which they are
represented in the NA.178 The majority party in the NA will therefore
usually have a majority on each of the committees and will be able to
outvote minority parties if disagreements arise about the handling of a
particular matter or support for specific legislative provisions.
Political parties appoint the members of a committee to which they are
entitled and advise the Speaker accordingly.179 A committee must elect
one of its members as the chairperson of the committee. With the exception
of the Committee on Public Accounts, which has traditionally been chaired
by a member of one of the opposition parties, the chairperson will be a
member of the majority party earmarked for the position by the party
leadership in the NA. The chairperson of a committee can also be removed
as chairperson if the party to which he or she belongs deems it fit to do so.
Members of a committee representing a specific political party can also be
removed or changed by the political party that nominated the member. This
means that the leadership of a political party has considerable influence
over individual members of their party in the NA. Serving on some
committees is deemed to be more desirable than serving on others. As the
chairperson of a committee holds considerable power to arrange the affairs
of a committee, members may act in a manner that would not detract from
their chances of being allocated to desirable committees or – in the case of a
majority party – being appointed as chairperson of a committee. As we shall
see, committees of the NA have wide-ranging powers to assist them in
fulfilling their various tasks, including the power to summons any person to
appear before them.

4.4 The National Council of Provinces

4.4.1 The composition and functioning of the National

Council of Provinces
The National Council of Provinces (NCOP) is the second chamber of the
bicameral national Parliament. It was created to represent the provinces and
‘to ensure that provincial interests are taken into account in the national
sphere of government. It does this mainly by participating in the national
legislative process and by providing a national forum for public
consideration of issues affecting the provinces’.180 Note that the NCOP
should not be confused with the nine provincial legislatures that pass
legislation for each province in the functional areas exclusively or
concurrently reserved for the provinces (see chapter 8).181 The NCOP is
the second chamber in the national Parliament, and thus not one of the
provincial legislatures although it retains links with the respective
provincial legislatures because of the way it is composed and operates.
Naledi Pandor, then Chairperson of the NCOP, described the NCOP thus:
The NCOP acts at the national level of government in
South Africa. It represents provincial and local
government. It functions as a bridge between these three
spheres of government. The NCOP is a linking
mechanism that acts simultaneously to involve the
provinces in national purposes and to ensure the
responsiveness of national government to provincial
interests. Through the NCOP, national government is
sensitised to provincial interests and its processes are
enriched accordingly. Equally, by engaging the provinces
and provincial legislatures in the formulation of national
policy, it avoids their becoming parochial.182
In Doctors for Life the Constitutional Court stated:
The NCOP performs functions similar to the National
Assembly but from the distinct vantage point of the
provinces. Its role is both unique and fundamental to the
basic structure of the government as it reflects one of the
fundamental premises of the South African government,
which sees national, provincial and local governments as
‘spheres within a single whole’, which are distinctive yet
interdependent and interrelated. The NCOP ensures that
national government is responsive to provincial interests
 while simultaneously engaging the provinces and
provincial legislatures in the consideration of national
policy. From this perspective, the NCOP plays a pivotal
role ‘as a linking mechanism that acts simultaneously to
involve the provinces in national purposes and to ensure
the responsiveness of national government to provincial
interests’.183
The NCOP is carefully designed as a key institution for ensuring co-
operative government in law making and in overseeing the executive
intergovernmental process. It plays a role both in the passage of national
laws (both laws dealing with ‘national’ issues and laws that fall under the
list of concurrent functions) and in overseeing the use of the extensive
intervention powers vested in the national government and provinces.184
As Murray and Simeon point out:
The NCOP is the quintessential institution of co-
operative government, providing a forum for the
representation of provincial interests in the national
Parliament. Its role is to ensure that the institutional
integrity and policy concerns of provinces are fully taken
into account in the national legislative process. As a part
of the national Parliament and as an (indirectly) elected
body, it is designed to operate as an intergovernmental
institution without the ‘democratic deficit’ which so
often is part of intergovernmental relations.185

PAUSE FOR REFLECTION

The NCOP resembles the German Bundesrat

In Doctors for Life, the Constitutional Court noted that the
NCOP shares many of its structural characteristics with the
German body known as the Bundesrat or Council of State
Governments on which the NCOP was modelled.186 Like
 the NCOP, the Bundesrat represents the interests of the
Länder (the states) which, in the South African context, are
equivalent to the nine provincial governments. The NA is
similar to the second parliamentary body in Germany
known as the Bundestag as the NA is elected to represent
the interests of all the people of South Africa, not merely
the interests of the citizens of an individual province. The
members of the Bundesrat are members of the state
governments and are appointed and subject to recall by
the states – just like the members of the NCOP. They serve
in the council as representatives of the Länder. Germany’s
Basic Law or Constitution 187 provides that the Länder
shall participate, through the Bundesrat, in the national
legislative process.188 ‘As constitutional partners, both the
Bund or national government and the Länder have an
obligation to consult, cooperate and communicate with
each other, consistent with the principle of Bundestreue ’
189 – this is how the Federal Constitutional Court of
Germany 190 explained the constitutional obligation of
trust and friendship that the Bund (national government)
and the Länder (states) have towards each other.191

The NCOP consists of 90 members made up from delegations of

10 members from each of the nine provinces.192 The nine provincial
legislatures appoint the nine provincial delegations, one for each province.
The individual delegation slots are allocated proportionally to the various
parties in each provincial legislature in accordance with the relative strength
of parties in each of the respective legislatures.193 For example, if the ANC
received 60% of the seats in the Gauteng legislature and the Democratic
Alliance (DA) 30%, then the ANC would be entitled to six and the DA to
three of the 10 delegates representing Gauteng in the NCOP.
 In addition, the members of each provincial delegation are classified as
either special or permanent delegates.194 There are four special delegates
and six permanent delegates in each provincial delegation.195 The four
special delegates are composed of the Premier of a province together with
three other delegates selected from among the members of that provincial
legislature.196 If the Premier is not available, he or she may delegate
someone else to represent him or her.197 The Premier or his or her delegate
heads the delegation.198 These four special delegates remain members of
the provincial legislature: they are simultaneously members of the
provincial Parliament and members of the national Parliament acting as
special delegates to the NCOP. They are not appointed for a fixed term and
the provincial legislature can change the composition of its special
delegates ‘from time to time’.199 This means that a provincial legislature
can send different members to the NCOP as special delegates to deal with
different issues, for example on the basis that a delegate has special
knowledge of a matter being considered by the NCOP.
Figure 4.2 Composition of the National Council of Provinces
The provincial legislatures appoint the six permanent delegates of each
provincial delegation on the basis of party affiliation to ensure the accurate
proportional representation of each political party represented in the
provincial legislature in the NCOP delegation. Permanent delegates cannot
simultaneously be members of the provincial legislature and act as
permanent delegates to the NCOP. They are either selected from among
party members not elected to the provincial legislature or they are selected
from among the members of the provincial legislature, in which case they
automatically lose their seat in that House.200 The permanent delegates
perform an important 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 10 members of each provincial delegation to the
NCOP are permanently stationed at Parliament in Cape Town.201
 The provincial legislature may recall a permanent delegate if the delegate
‘has lost the confidence of the provincial legislature and is recalled by the
party that nominated that person’.202 This will occur when the NCOP
passes a vote of no confidence in the delegate, at which point the political
party that nominated him or her acquires a right to recall that member.203
The composition of the NCOP – with equal representation for small and
large provinces – means that it is not a foregone conclusion that the political
party who garners a majority in the NA will also do so in the NCOP.

PAUSE FOR REFLECTION

Factors influencing the operation of the NCOP

Although the NCOP perhaps has fewer powers than its
predecessor, the Senate,204 it seems to be a better
collective representative of provincial interests. However, it
may be wise to keep in mind that constitutional engineering
is an imprecise science. The larger political context, the
traditions and culture of political parties and the relative
support of each political party in the system all influence
the manner in which constitutional structures like the
NCOP operate and whether they will fulfil their mandate.
This also means that as the political landscape changes
and as elections become more competitive, for example if
one party were to win the election in five provinces and a
coalition of other parties were to win a majority in the other
four provinces, the dynamics around the functioning of the
NCOP may well change. The NCOP may then come into
its own as a true representative of the various provincial
interests. The Constitutional Court reached the following
conclusion in Certification of the Constitution of The
Republic Of South Africa, 1996:
Although we are satisfied that the structure and the functioning of
the NCOP as provided for in the [new Constitution] are better suited
to the representation of provincial interests than the structure and
 functioning of the Senate, we are unable to say that the collective
interest of the provinces will necessarily be enhanced by the
changes that have been made. We have found it extremely difficult
to evaluate the overall impact of these changes. A number of
variable and uncertain factors have to be taken into account. These
include not only the differences in the powers of the two Houses
which have been referred to, but also the method of appointing the
members of the Houses, the contrast between direct and indirect
representation, the different methods of voting, the different
procedures to be followed, the influence of parties on voting
patterns, and the possible impact of the anti-defection provisions
on voting.205

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. If the legislation does not directly affect the provinces, NCOP
members usually each have an individual vote which they cast in
accordance with the wishes of their respective political parties.206 In all
other cases – including when amending the Constitution or dealing with
Bills affecting the provinces – each provincial delegation casts a single
vote.207 It does so under instruction, also called a mandate, from the
provincial legislature of the province represented by the delegation.208 As
the Constitutional Court has explained in Certification of the Amended Text
of the Constitution of The Republic Of South Africa, 1996, the NCOP ‘is a
council of provinces and not a chamber composed of elected
representatives. Voting by delegation reflects accurately the support of the
different provincial legislatures for a measure under consideration’.209 ‘In
this manner the provincial legislatures are given a direct say in the national
law-making process through the NCOP.’ 210
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. Because provincial legislative attention is
so 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 ill equipped in terms of information and expertise to
pass judgment on national legislation and to provide informed mandates to
the respective NCOP delegations. This problem is exacerbated by poor
communications between the NA and the NCOP and between NCOP
delegations and their provincial legislatures. Draft Bills are often provided
to the NCOP with little time for provinces to respond.211
In addition, NCOP members are supposed to provide a bridge between
the national legislature 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. Individual NCOP
members, shuttling between Parliament in Cape Town and remote
provincial capitals, are placed under enormous strain. It is highly
unrealistic, and probably unnecessary, for provincial legislatures to pay the
same attention to national legislation as does the NA. It is far more
important for them to come to grips with local issues and problems.
However, it is critical that provinces are able to voice their opinions when
legislation directly affects the economic or social interests of their region,
and that they can ensure that national legislation they will be required to
implement is workable. Another problem is that there is little linkage
between the exchange of information and ideas that goes on within the
processes of executive intergovernmental relations and exchanges at the
parliamentary level through the NCOP. Indeed, provincial executives take
little interest in NCOP matters. This differs greatly from the operation of
the German Bundesrat, the members of which are themselves provincial
executives, thus integrating legislative and executive intergovernmental
relations.212
Because of these practical difficulties as well as the limited powers and
functions formally bestowed on the NCOP, the NCOP, as the second House
of the national Parliament, is often viewed as the less powerful and
influential of the two chambers of the bicameral South African Parliament.
This is so because almost all Cabinet Ministers will be members of the NA
while NCOP members cannot serve as Cabinet Ministers. Although Cabinet
Ministers and Deputy Ministers may attend and may speak in the NCOP,
they may not vote in that chamber.213 Moreover, unlike the NA, the NCOP
is not given a clear mandate to hold members of the Cabinet accountable or
to maintain oversight over the executive although the NCOP plays an
important role in the passing of legislation.
Nevertheless, the NCOP and its committees are, under section 69 of the
Constitution, given broad powers. They may ‘summon any person to appear
before it to give evidence on oath or affirmation or to produce documents;
require any institution or person to report to it; compel, in terms of national
legislation or the rules and orders, any person or institution to comply with
a summons; and receive petitions, representations or submissions from any
interested persons or institutions.’

CRITICAL THINKING

The role of strict party discipline in the

effectiveness of the NCOP
The events which led to the Constitutional Court judgment
in Merafong Demarcation Forum and Others v President of
the Republic of South Africa and Others 214 illustrate the
difficulties faced by NCOP delegations required to receive
electoral mandates from their respective provinces. In this
case the Gauteng legislature adopted a ‘negotiating
mandate’ regarding proposed amendments to the
Constitution to eradicate cross-border municipalities.215 Its
NCOP delegation would support the amendments on
condition that the Merafong area would be retained in the
Gauteng Province and would not be moved to the North
West Province as the legislation proposed. It thus
appeared to agree with the view expressed by the majority
of the Merafong community at the public hearing that the
phasing-out of cross-boundary municipalities had to be
supported, but that the entire municipality of Merafong had
to be located in Gauteng.
However, for technical reasons, the proposed
constitutional amendment could not be changed and the
NCOP had either to support the Bill, in which case it would
be passed, or to reject the entire constitutional
amendment, in which case it would not be adopted.
Realising this, the NCOP delegation from Gauteng then
changed its mind and voted in support of the Bill and it was
passed. Challenging this decision, the applicants argued
that the National Executive Committee (NEC) of the ANC
had decided earlier that Merafong would go to North West
and had instructed the NCOP to support the amendment.
The majority of the Constitutional Court found that ‘[o]n the
available evidence, it is not possible to determine whether
and to what extent the final voting mandate and the debate
in the NCOP [delegation] were directly or indirectly
influenced by previously formulated policies of the ruling
party’.216
Although there was not sufficient evidence to determine
that the NCOP delegation changed its mandate because of
instructions by the ANC NEC, the case demonstrates the
potential problems of the system. Given the culture of
political parties of strictly adhering to the discipline imposed
by their leaders, and the fact that the governing party has
the power to discipline the members of the provincial
legislature as well as the NCOP delegation if they disobey
leadership instructions, it is not far-fetched to imagine that
provincial legislatures will provide NCOP delegations with
mandates that align with the decisions of the party
leadership and not necessarily with the interests of the
province. In other words, the single factor most likely to
determine to what extent the NCOP is able to represent the
interest of the provinces in an effective manner is the
degree to which political parties demand adherence to
strict party discipline from their delegates. Where the
majority party in the national Parliament is also in control of
a majority of provincial legislatures, adherence to strict
party discipline will mean that those provincial delegations
controlled by the majority party will be reluctant to
 challenge the political consensus which emerges from the
representatives of the majority party in the NA. This will be
particularly true where a sensitive political issue is at stake.
However, in more technical and politically less sensitive
areas, strict party discipline will not necessarily emasculate
the provincial delegations of the majority party in the NA.

4.4.2 Procedures, internal arrangements and

committees of the National Council of Provinces
The Constitution requires the election of a Chairperson and two Deputy
Chairpersons of the NCOP,217 and provides for the NCOP to make its own
internal arrangements and procedures.218 The NCOP is also required to
establish committees to oversee its work, which is done in terms of its
rules.219
Because the NCOP is composed of a single delegation from each
province, each province usually has one vote which must be cast on behalf
of the province by the head of the delegation.220 A 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.221
An Act of Parliament ‘must provide for a uniform procedure in terms of
which provincial legislatures confer authority on their delegations to cast
votes on their behalf’.222 Pursuant to this, Parliament enacted the
Mandating Procedures of Provinces Act.223 However, despite the
mechanisms that could be created for consensus building and consultation
across party lines, in effect the majority party in the provincial legislature
has the power to decide how the vote of the provincial delegation will be
exercised. Except where the Constitution provides otherwise, questions
before the NCOP are agreed when five of the nine provinces vote in favour
of it.224 In other words, an absolute majority is normally required.225
These provisions recognise that the single delegation of a province in the
NCOP normally acts as representative of the province.
 However, as was noted above, sometimes the NCOP does not act in this
capacity as representative of the province. For example, when Bills are
considered which do not affect the provinces, in other words non-
Schedule 4 and 5 Bills, the NCOP does not represent the provinces and the
voting procedures described above do not apply. In respect of such matters,
the Constitution provides that the delegates in the Council vote individually.
A quorum of one-third of the delegates must be present and a decision must
then be taken by a majority of those present.226
The Constitution further provides, consistent with this distinction, that
when the NCOP acts as representative of the provinces, all the provinces
must be allowed to participate in the ‘proceedings in a manner consistent
with democracy’.227 However, when it comes to law making that does not
affect the provinces, minority parties must be allowed to participate in law
making.228
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, however,
far less secure. The terms of the permanent delegates are linked to the
provincial legislature they represent and, as we stated above, they may be
recalled. The position of the special delegates is even less secure. Because
they are appointed from time to time, they will generally serve for short
periods of time on the NCOP.

4.5 Functions of Parliament

4.5.1 Introduction
The main function of Parliament is to enact national legislation for the
Republic of South Africa. However, the enactment of legislation is not the
only function bestowed on Parliament by the Constitution. On a more
symbolic level, Parliament also provides a national forum for public debate
on issues of national importance. In this sense, Parliament provides a
platform for representatives of political parties to present their views and
debate each other.
 While both Houses of Parliament play an integral role in the adoption of
legislation, and while both provide platforms for debate about important
issues, the Constitution confers additional powers on the NA that enable it
to fulfil a special role as a ‘check’ on the executive authority. This special
task is bestowed on the NA because of the fact that it appoints and can
dismiss the President. It follows that the President and his or her Cabinet
need to retain the confidence and hence the support of the NA to continue
doing their job. Although the tasks of the two Houses are therefore not
identical, the two Houses of Parliament can be said to fulfil four main
functions. They must:
• provide a forum for debate on important issues 229
• hold the executive organs of state in the national sphere of government
accountable to Parliament 230
• exercise an oversight function over the exercise of national authority and
over other organs of state 231
• pass national legislation.232

4.5.2 National forum for public consideration of issues

One of Parliament’s most important functions may be described as fulfilling
the role of ‘national talk shop’.233 Currie and De Waal argue that
Parliament fulfils this role in two ways:
• First, Parliament is required to operate in a transparent and accountable
manner.234 The public, including the media, may not be excluded from a
sitting of a committee unless it is reasonable and justifiable to do so in an
open and democratic society.235
• Second, as we have seen, Parliament is required to operate in such a way
as to give ordinary persons and affected individuals and institutions the
opportunity to have access to its proceedings and to present their views
on issues considered by Parliament in writing or by oral
presentations.236
However, we contend that the two Houses of Parliament also fulfil this task
by providing a platform for elected political representatives to deliver
speeches and to engage in debates with one another and with the President
about policy questions as well as issues of political importance. Because
events in Parliament are relatively well reported by the print and electronic
media, Parliament provides an important platform for the floating of new
ideas and for elected politicians to ‘perform’ democracy by illustrating their
willingness to debate important and often emotional issues with members
from other political parties in a relatively rational and calm manner.
Parliament, at its best, can therefore act as a body that educates citizens
about the importance of embracing a participatory notion of democracy and
the requirement to respect differences without having to agree with those
who differ from oneself.
The Rules of the NA and the NCOP provide various mechanisms to
achieve these goals.237 For example, a member of the NA may propose a
subject for discussion or a draft resolution for approval as a resolution of
this House.238 The Rules of the NA provide for an MP to request the
Speaker to place a matter of public importance on the Order Paper for
discussion.239 The Rules also allow an MP to request the Speaker on any
day the NA sits to allow a matter of urgent public importance to be
discussed by the NA.240
The Rules of the NCOP allow its members too to request the
Chairperson of the NCOP in writing to allow a matter of public importance
to be discussed by the Council, but this request will only be granted if the
matter affects the provinces or one or more of them.241

4.5.3 Holding the executive accountable to Parliament

As we have seen in the discussion about the separation of powers doctrine,
the 1996 Constitution retains a form of parliamentary government which is
similar but not identical to the Westminster model of government. The
South African Constitution thus states that members of Cabinet are
accountable to Parliament and must report to Parliament regularly.242
Accountability is the hallmark of modern democratic governance and
implies that members of the executive have to explain their actions to
Parliament and its committees so that Parliament can play a role in
checking the exercise of power by members of the executive. This power of
Parliament to hold the executive accountable will only be effectively
exercised where Parliament ultimately has the ability to sanction members
of the executive who abuse their power or fail to fulfil their respective
mandates. The power of Parliament to hold the executive accountable
therefore, in essence, entails two distinct but interrelated aspects:
• First, it entails the powers of Parliament to call members of the executive
and the public administration to account for their activities. This is aimed
at enhancing the integrity of public governance to safeguard government
against corruption, nepotism, abuse of power and other forms of
inappropriate behaviour, and to assist in improving the performance of
the Cabinet as well as the public administration. This kind of
accountability also reflects a culture of transparency, responsiveness and
answerability which is necessary to assure public confidence in
government, to bridge the gap between the governed and the
government, and to ensure public confidence in government. If used
wisely and effectively, these accountability mechanisms enable the
public to judge the performance of the government by the government
giving account in public.243
• Second, 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 such, accountability requires the establishment of
institutional arrangements to effect democratic control over the executive
as members of the executive, unlike the MPs, are not directly
democratically elected.
As far as the first aspect is concerned, sections 56 and 69 of the
Constitution respectively provide that the NA and the NCOP as well as any
of their committees may ‘summon any person to appear before it to give
evidence on oath or affirmation, or to produce documents’. It may also
require ‘any person or institution to report to it’. Where anyone refuses to
appear before Parliament or any of its committees, it can summons that
person or institution and can compel such a person or institution to comply
with the summons. The Rules of Parliament further provide for the powers
of its committees to enable these committees to hold members of the
executive accountable.244 The Rules of the NA and the NCOP also provide
for members of the NA to pose questions and receive oral answers from
Ministers,245 the Deputy President 246 and the President.247
As far as the second aspect is concerned, the NA has distinct powers (not
given to the NCOP) to ensure democratic control over the executive.
Although the Cabinet is accountable to both the NA and the NCOP, the
Constitution clearly envisages a special role for the NA in this regard.
Section 102(2) of the Constitution empowers the NA to pass a motion of no
confidence in the President as long as such a motion is supported by a
majority of its members. In this event, the President and the other members
of the Cabinet and any Deputy Ministers must resign.248 This power is a
political power and the removal can thus be effected for purely political
reasons. This provision means that the President and his or her Cabinet have
a strong political incentive to retain the support of the majority party in the
NA. In the South African political landscape, this means they also have a
strong political incentive to retain the support of the leadership of the
majority party outside Parliament. If a President loses the support of the
majority party, he or she will have to resign. If he or she refuses to do so, he
or she will be removed by a vote of no confidence in the NA as the majority
party in the NA will instruct its members to support such a vote. If members
of the NA refuse to support such a vote, the political party they represent
will then be able to remove them from the NA.
Neither the majority party in the NA nor any of the minority parties are
constitutionally allowed to block the tabling, discussion, consideration and
voting on a motion of no confidence. In Mazibuko v Sisulu and Another,249
the Constitutional Court confirmed this, declaring invalid Chapter 12 of the
Rules of the NA that purported to do just that. The case arose after the
Leader of the Opposition in the NA gave notice of a motion of no
confidence in the President. The programme committee of the NA 250 met
to consider the proposed motion of no confidence. However, its
deliberations on the motion were deadlocked. Because there was an absence
of consensus between the parties, the Speaker concluded that the motion
could not be scheduled and could therefore not be debated or voted on.251
The majority judgment (authored by Deputy Chief Justice Moseneke) found
that the Constitution required the Rules of the NA to permit its members to
deliberate and vote on a motion of no confidence in the President:
A motion of no confidence in the President is a vital tool
to advance our democratic hygiene. It affords the
Assembly a vital power and duty to scrutinise and
oversee executive action … The ever-present possibility
of a motion of no confidence against the President and
the Cabinet is meant to keep the President accountable
to the Assembly which elects her or him. If a motion of
no confidence in the President were to succeed, he or she
and the incumbent Cabinet must resign. In effect, the
people through their elected representatives in the
Assembly would end the mandate they bestowed on an
incumbent President.252
This right to have a motion of no confidence considered and voted on is
central to the ‘deliberative, multiparty democracy envisioned in the
Constitution’.253 The Court pointed out that it ‘implicates the values of
democracy, transparency, accountability and openness’.254 It is for this
reason that a ‘motion of this kind is perhaps the most important mechanism
that may be employed by Parliament to hold the executive to account, and
to interrogate executive performance’.255 The Rules of the NA may not
‘deny, frustrate, unreasonably delay or postpone the exercise of the
right’.256 This means a decision whether a vote of no confidence is tabled,
debated and voted on:
cannot be left to the whim of the majority or minority in
the programme committee or any other committee of the
Assembly. It would be inimical to the vital purpose of
section 102(2) to accept that a motion of no confidence in
the President may never reach the Assembly except with
the generosity and concurrence of the majority in that
committee. It is equally unacceptable that a minority
 within the Committee may render the motion stillborn
when consensus is the decision-making norm.257
Although the NA has the constitutional authority to ‘determine and control
its internal arrangements, proceedings and procedures’,258 such authority
must be exercised in conformity with the Constitution. When a motion of
no confidence is tabled, it ‘must be accorded priority over other motions
and business by being scheduled, debated and voted on within a reasonable
time’.259 The NA is therefore required to ‘take prompt and reasonable
steps to ensure that the motion is scheduled, debated and voted on without
undue delay’.260 This does not mean that when such a motion is tabled it
will be passed. As long as the majority party in the NA retains confidence
in the President and his or her Cabinet, there is little chance of the NA
passing such a vote of no confidence. However, where the majority of
members of the NA lose confidence in the President, such a vote will lead
to the removal of the President. It is therefore not surprising that former
President Thabo Mbeki resigned as President of the Republic after losing a
leadership battle with his successor in the governing party and was
consequently ‘recalled’ by the leadership of the party. If he had refused to
resign, the ANC would in all likelihood have instructed its members in the
NA to support a vote of no confidence in the President, something which
would arguably have resulted in his removal.261
Section 89(1) of the Constitution also allows the NA to impeach the
President by adopting a resolution with a supporting vote of at least two-
thirds of its members to remove the President on the grounds of a serious
violation of the Constitution or the law, serious misconduct or inability to
perform the functions of office. This is not a purely political power, but a
power to remove the President for objective reasons unrelated to the
political support enjoyed by the President. Moreover, section 55(2)(a) of the
Constitution commands the NA to devise mechanisms that will enable it to
hold the executive organs of state accountable to Parliament. These
provisions reiterate one of the fundamental principles of a traditional
system of parliamentary government, namely that the President and his or
her Cabinet must remain accountable to the democratically elected NA.262
 The extent to which the NA, and to a lesser extent the NCOP, are able to
hold the executive accountable to Parliament depends on the traditions and
practices that are developed in Parliament over time. This, in turn, depends
on the attitude of the members of the majority party in Parliament,
especially its leaders who serve in the government, towards the need for
accountable government. It also depends on the way in which members of
opposition parties fulfil their role in holding the executive to account. In
this regard, the role of the portfolio committees discussed above is crucial.
One of the most important ways in which Parliament holds the executive
accountable is through the regular question-and-answer sessions in
Parliament. During such question times, MPs have the opportunity to pose
probing questions about the activities of the President, Deputy President
and the Cabinet Ministers. Ministers are then obliged to provide statistics
about different aspects of their departments, details of the expenditure on
various items and to defend the policies they have adopted.263

CRITICAL THINKING

How accountable is the executive to Parliament?

Nash is critical of the notion of accountability built into the
South African Constitution with its emphasis on the
democratically elected Parliament and its role of holding
the executive accountable. He argues that effective
accountability practice – widely employed in the South
African labour movement in the 1970s and 80s – does not
‘depend on lawyers, bureaucrats or accountability experts
or even a handbook. It depends on active participation in
political life, informed by a shared ethical standard’.264
This process of accountability, Nash argues, is important
because it strengthens the capacity of oppressed and
marginalised people to act collectively and consciously to
take responsibility for their actions and those of their
leaders. Where there is little or no active participation in the
decision-making processes of Parliament or the executive
 by the electorate, and no real prospect of them recalling
their leaders or changing their mandate, as happened in
the earlier labour movement, the accountability remains no
more than paper accountability with no or little practical
effect for the oppressed.265 This ‘neoliberal’ model of
accountability ‘can be understood largely as a way of
providing the façade of democracy without the substance,
ensuring that issues around which “factions of the majority”
might unite against the interests of the propertied are taken
out of the political arena and made the subject of
bureaucratic procedure instead’.266
Nash’s view is based on a more ‘grassroots’
understanding of democracy and accountability. It displays
a scepticism towards the notion of representative
democracy and the formal mechanisms put in place by the
Constitution to ensure accountability. At its heart this view
seems to be sceptical about the ability of the MPs –
indirectly elected because of their standing in a political
party and not directly accountable to any constituency – to
hold the executive to account.

4.5.4 Maintaining oversight of the national executive

authority and other organs of state
Oversight resembles, but is nevertheless to be distinguished from,
accountability. It ‘entails the informal and formal, watchful, strategic and
structured scrutiny exercised by legislatures in respect of the
implementation of laws, the application of the budget, and the strict
observance of statutes and the Constitution’.267 It requires the NA to
oversee the day-to-day exercise of authority by the national executive and
to oversee the actions of other organs of state. This task includes the task of
overseeing the implementation of legislation.268 ‘In addition, and most
importantly, it entails overseeing the effective management of government
departments by individual members of Cabinet in pursuit of improved
service delivery for the achievement of a better quality of life for all
citizens. In terms of the provisions of the Constitution and the Joint Rules
of Parliament, Parliament has the power to conduct oversight over all
organs of state, including those at provincial and local government level.’
269 Organs of state are defined broadly in section 239 of the Constitution to
include:
any department of state or administration in the
national, provincial or local sphere of government; or
any other functionary or institution exercising a power
or performing a function in terms of the Constitution or
a provincial constitution; or exercising a public power or
performing a public function in terms of any legislation
…
Parliament is therefore entitled to oversee the work of the more than
1 000 organs of state which include a wide array of institutions such as all
public universities in South Africa, the Johannesburg Fresh Produce
Market, the Public Protector, the Human Rights Commission, the Medical
Research Council of South Africa, the National Gambling Board, the
National Lotteries Board and the Natal Sharks Board, to name but a few.
However, this does not include a court or a judicial officer, which means
Parliament cannot fulfil an oversight role over the judiciary.270
The appropriate mechanism for Parliament to conduct oversight of these
organs of state is through the various parliamentary committees, mostly the
portfolio committees discussed above. ‘In conducting oversight, the
committee would either request a briefing from the organ of state [or
Cabinet Minister] or visit the organ of state for fact-finding, depending on
the purpose of the oversight … One of the most important aspects of the
oversight function is the consideration by committees of annual reports of
organs of state and the Auditor-General’s reports.’ 271 The more
independent, knowledgeable, hard-working and politically powerful the
members of the committees are, the more rigorous the NA’s oversight of the
executive and other organs of state will be. Committees have the power to
investigate and make recommendations on any matter relating to
government departments, including budgets, rationalisation, restructuring,
organisation, structure, function, personnel and policy formulation.272
The oversight role of the NCOP is more defined. The NCOP must
review the intervention of the national executive in a province and the
provincial executive in a municipality.273 Both the NA and the NCOP must
approve a decision by the Treasury to stop the transfer of funds to a
province 274 or a decision by the President to declare a state of national
defence.275 Additionally, the NCOP resolves disputes concerning the
administrative capacity of a province.276

CRITICAL THINKING

The relationship between the members of the

executive and the ordinary members of
parliamentary committees
Taljaard, speaking from a different ideological position than
Nash quoted above, was intimately involved in overseeing
the executive as a member of the NA’s Public Accounts
Committee (Scopa) during the so-called arms deal
scandal. She provides the following perspective on the
manner in which oversight occurred (or did not occur) in
Parliament in the case of the arms deal:
At the start of 2001 a concerted assault by the executive on the
standing committee on public accounts (Scopa) and the auditor-
general was about to commence with battle-like precision. I would
look on with fascination, without realising that my party leader was
about to hurl me right into the middle of the gladiatorial arena. On
January 13, ministers Alec Erwin, Mosiuoa Lekota and Trevor
Manuel opened with a salvo attacking Scopa’s ‘incompetence’ and
strongly defending the integrity of the arms acquisition process.
Each minister defended his corner: Lekota, the procurement
process itself; Manuel, the cost of the deal and its financing; and
Erwin, the benefits of the offset or countertrade obligations for job
creation. Despite this aggressive attack the ministers did commit
themselves to full co-operation with the investigations, even
 though they complained bitterly that Scopa had not given them the
opportunity to explain themselves before calling for a full probe –
echoing the words of a cabinet statement the year before.

… The executive unleashed its strategy on Friday, January 19. This

would bring half the cabinet, including the president, deputy
president, minister of finance, minister of trade and industry,
minister of public enterprises, minister of defence and minister of
justice, into the fight between Parliament and the executive. But it
was the president’s turn to launch a broadside on the institution in
the form of a public televised address. We knew that [then
President Thabo] Mbeki was going to speak on the SABC on that
day about the arms deal probe, and eagerly awaited his address. …
As we awaited his public broadcast, I was sitting in my office in the
Marks Building when a fax came through from the office of Deputy
President Jacob Zuma – in his capacity as leader of government
business. It contained an explosive letter, attacking the integrity of
Scopa and its chairman and calling into question its intentions in
drafting the 14th report and in seeking a full-scale forensic probe of
the arms deal (which the letter referred to as a ‘fishing expedition’).
I had never read such intemperate language – certainly not from a
senior figure – and was amazed by the deputy president’s opinions
about the committee in view of his own attempts to enhance
Parliament’s oversight role in his capacity as leader of government
business.

This was bad enough, but more was in store. As President Thabo
Mbeki began his address on television I had the uncomfortable
sensation of watching a concerted effort to frighten Scopa and the
auditor-general by a sheer show of executive force. In his address
Mbeki emphasised the government’s efforts to fight corruption and
its support for any probe, committed the government to upholding
the rule of law, and emphasised that it would not break any
contracts it had legally entered into. He complained bitterly about
the fact that Scopa and the auditor-general had not communicated
with the cabinet and cabinet subcommittees before coming to its
conclusions about their decisions. This would be a recurring theme
in the government’s defence.277

Regardless of a person’s ideological point of view, and

whether he or she is broadly speaking a supporter of the
governing party or an opposition party, and regardless of
whether we agree with Taljaart’s rendition of events, she
does raise questions about the relationship between the
 members of the executive (who are usually also the
leaders of the majority party in Parliament) and the
ordinary members of parliamentary committees and the
ability of such ordinary members to oversee the work done
by more senior members of their party in government. It
will indeed be very difficult for a member of a portfolio
committee to hold the President and other members of the
executive accountable and oversee their work in a vigorous
manner for at least two reasons:
• First, it may well embarrass the government of the day if
a member of the NA reveals damaging information about
corruption or maladministration in the department of a
Cabinet Minister. If this member embarrasses the
government of the day, it would indirectly embarrass the
political party of which this person may be a member.
This may influence the electoral prospects of the
member’s party at the next election and may also
endanger the member’s political career as the member
may lose his or her seat at the next election.
• Second, members of the NA are elected because they
appear sufficiently high up on their political party’s
electoral list. If a member angers the party leadership,
this member may well not be placed high enough on the
electoral list to be re-elected to the NA, bringing an
abrupt end to the member’s political career.

4.5.5 Passing of legislation

The notion of co-operative government, enshrined in Chapter 3 of the
Constitution, lies at the heart of the law-making process in the national
Parliament. This is because the procedure for enacting legislation under the
Constitution requires institutional co-operation and communication between
national and provincial legislatures as well as between the executive and
Parliament. However, the Constitution does not clearly define how this
should occur. Such co-operation is necessary to implement the national
legislative programme. It is important to note that this need for co-operation
is intimately linked with the fact that the legislative process is based on the
assumption that provincial interests (as defined in the Constitution) will be
taken into account in the national law-making process whenever such
interests arise. As such, the NCOP plays an important role in
institutionalising the principle of co-operation and communication by
involving the nine provinces directly in the national legislative process and
other national matters. As the Constitutional Court pointed out in Doctors
for Life:
The local government is also involved indirectly in that
local government may designate up to ten part-time,
non-voting representatives to participate in the NCOP
proceedings. Thus the NCOP represents the concerns
and interests of the provinces and as well as those of local
government in the formulation of national legislation.278
The Court proceeded to note:
the principle of institutional co-operation and
communication finds expression in the principle of co-
operative government to which Chapter 3 of the
Constitution is devoted. The role of the NCOP should be
understood in the light of the constitutional principle of
co-operative government, which shares similarities with
the principle of Bundestreue. The basic structure of our
government consists of a partnership between the
national, provincial and local spheres of government
which are distinctive, interdependent and interrelated.
The principle of co-operative government requires each
of the three spheres to perform their functions in a spirit
of consultation and co-ordination with the other
spheres.279
It is important to note from the outset that the national Parliament (as
opposed to the nine provincial legislatures) has the power to pass legislation
on any topic, even those not explicitly listed in the Constitution, unless the
Constitution provides otherwise. Thus Parliament may usually not pass
legislation on the small number of topics reserved in Schedule 5 of the
Constitution as areas for exclusive provincial legislative activity.280
Parliament may pass legislation on any topic listed in Schedule 4 of the
Constitution as this section sets out the concurrent powers on which both
the national Parliament and the provincial Parliaments can legislate.
However, where a conflict occurs between national legislation and
provincial legislation dealing with a topic listed in Schedule 4, the
provincial legislation will usually prevail over the national legislation
unless one of the criteria listed in section 146 is present.281 Section 44 of
the Constitution further confers power on Parliament to amend the
Constitution 282 while it also confers powers on the NA specifically ‘to
assign any of its legislative powers, except the power to amend the
Constitution, to any legislative body in another sphere of government’.283
As indicated earlier, there is no absolute separation of the functions
performed by the legislative and the executive branches of government.
This is evident when we focus on the passing of legislation by Parliament,
which is arguably the most important function of that body. Because of the
political influence (we may even say dominance) of the executive in our
system of government, draft legislation usually originates in the executive
and is then tabled in and passed by Parliament. Individual members of the
NA may initiate legislation 284 in the form of Bills called private members’
Bills.285 Committees of the NA may also initiate Bills.286
Section 73(2) of the Constitution allows any member of the NA to
introduce a Bill in the NA if that member is not a Cabinet Minister and even
if that member belongs to an opposition party. However, the previous Rules
of the NA made it difficult for non-Cabinet members, especially from
opposition parties, to initiate Bills. Until recently, the Rules of the NA
stated that a member of the NA could only initiate and introduce a Bill into
the NA if a majority of members of the NA had given ‘permission’ to an
MP to initiate such legislation.287 Members of opposition parties could
attempt to initiate legislation by submitting legislative proposals to the
Speaker. These proposals would set out the particulars of the proposed
legislation, explain the objects of the proposed legislation and state whether
the proposed legislation would have financial implications for the State.288
The Speaker would then refer the member’s memorandum to the
Committee on Private Members’ Legislative Proposals and Special
Petitions. This Committee would then decide whether the proposal should
proceed or not. In doing so, the Committee had to confine its consideration
of the legislative proposal to whether it:
goes against the spirit, purport and object of the
Constitution; seeks to initiate legislation beyond the
legislative competence of the Assembly; duplicates
existing legislation or legislation awaiting consideration
by the Assembly or Council; pre-empts similar
legislation soon to be introduced by the national
executive; will result in a money bill; or is frivolous or
vexatious.289
Even if the Committee gave permission for the Bill to proceed, the majority
party in the NA could still decide not to support the initiation of the Bill
which meant that it would not be passed. In practice, this meant that
members of the opposition could never introduce any Bills in the NA unless
they were given permission by the majority party to do so. In Oriani-
Ambrosini, MP v Sisulu, MP Speaker of the National Assembly,290 the
Constitutional Court invalidated the Rules of the NA which required a
member of the NA to obtain permission from the NA to initiate and
introduce Bills. The Court stated that South Africa’s constitutional
democracy ‘is designed to ensure that the voiceless are heard’, and is one in
which the ‘views of the marginalised or the powerless minorities cannot be
suppressed’.291 The Court approvingly quoted a passage from its earlier
judgment in Democratic Alliance and Another v Masondo NO and Another
to illustrate the principle that must apply to the evaluation of NA Rules
giving effect to the constitutional provisions that empower members of the
NA to take certain actions:
 [T]he Constitution does not envisage a mathematical
form of democracy, where the winner takes all until the
next vote-counting exercise occurs. Rather, it
contemplates a pluralistic democracy where continuous
respect is given to the rights of all to be heard and have
their views considered … The open and deliberative
nature of the process goes further than providing a
dignified and meaningful role for all participants. It is
calculated to produce better outcomes through
subjecting laws and governmental action to the test of
critical debate, rather than basing them on unilateral
decision-making.292
The provisions in the Constitution that allow individual MPs to initiate
legislation and introduce Bills in the NA are important as these provide
members of the NA with an opportunity ‘to promote their legislative
proposals so that they could be considered properly’.293 The members of
both the majority and minority parties in the NA will then be required ‘to
deliberate critically and seriously on legislative proposals and other matters
of national importance’.294 These deliberations take place in the relevant
portfolio committee before the Bill is submitted to the NA for a vote. These
provisions therefore allow for the accommodation of different views in a
structured and formal manner during the consideration of legislative
proposals. As the Constitutional Court pointed out:
South Africa’s shameful history is one marked by
authoritarianism, not only of the legal and physical kind,
but also of an intellectual, ideological and philosophical
nature. The apartheid regime sought to dominate all
facets of human life. It was determined to suppress
dissenting views, with the aim of imposing hegemonic
control over thoughts and conduct, for the preservation
of institutionalised injustice. It is this unjust system that
South Africans, through their Constitution, so decisively
 seek to reverse by ensuring that this country fully
belongs to all those who live in it.295
This does not mean that the will of the majority party in the NA can
ultimately be overridden. Once a legislative proposal has been initiated and
tabled, the majority party can always vote against a Bill. This can only
happen after the Bill initiated by an ordinary MP has been discussed and
debated by the relevant portfolio committee. Some may say the right of
opposition MPs to introduce their own Bills would therefore be of little
more than ceremonial significance. However, as the Constitutional Court
pointed out, this is not so as it will give opposition MPS the opportunity to
go beyond an obstructionist oppositional role, allowing them to submit
constructive proposals of their own about how to solve a particular
legislative problem and allowing these proposals to be discussed seriously
by the members of the NA.296
Despite the changes brought about by the Oriani-Ambrosini judgment,
the large majority of Bills are still initiated and introduced by Cabinet
members 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. This means a
member of the executive, an individual Cabinet Minister, usually initiates
legislation dealing with issues related to his or her portfolio before a Bill is
introduced and adopted by Parliament. A Bill is the request submitted to
Parliament for the approval of particular legislation in relation to a
particular matter.

PAUSE FOR REFLECTION

One small step for Parliament, one giant leap for

Oriani-Ambrosini
One commentator welcomed the Oriani-Ambrosini
judgment on the basis that it must be viewed in the context
of the South African electoral system which disempowers
voters and weakens the links between voters and the
elected representatives in the NA. Writing on his blog, De
Vos stated:
Our electoral system – which requires us to vote for political
parties and not for individual MPs – renders it difficult for voters to
hold individual MPs accountable. Unless we join a political party
and unless we actively take part in the election processes for the
leadership of that party, we have little or no say in who represents
us in Parliament and who is elected as our President. This
diminishes transparency and accountability in the governance and
law-making processes.

Given these limitations, rules of the National Assembly which

would make it impossible for individual MPs to have their
alternative legislative proposals tabled and discussed by the
Assembly diminishes our democracy and robs voters of the
opportunity to judge whether they support the legislative proposals
of the governing party or of any given opposition party.

Chief Justice Mogoeng emphasised that providing such

alternatives ‘allows for a legislative proposal to be debated
properly and in a manner that is open to the public, before its fate
is decided’.297 Furthermore:

public participation, so as to cultivate an ‘active, informed and

engaged citizenry’, is also facilitated by rules that allow even
minority party members, who are not ordinarily represented in
Cabinet, to initiate or prepare legislation and introduce a Bill.
This is because the public can only properly hold their elected
representatives accountable if they are sufficiently informed of
the relative merits of issues before the Assembly.298

Of course, this does not mean, for example, that the majority party
would have changed course and ditched the Secrecy Bill in favour
of an alternative Bill proposed by Lindiwe Mazibuko. The majority
party would remain entitled to make the final decision on which Bill
to pass into law – no matter how unpopular that Bill might be with
the electorate.

But in the long run its MPs would have been forced to engage
seriously with an alternative Bill proposed by the opposition. A
failure to do so in a serious and competent manner would have run
the risk of turning away more informed voters and would have
eroded the voting majority of the dominant party. On the other
hand, if the MPs of the majority party had managed to show up the
Bill proposed by the opposition as frivolous, unworkable or
 unpopular, the party would have been able to gain more support
from voters currently supporting an opposition party or not
supporting any party at all. The judgment will not cure all the ills
that beset our democratic Parliament. The culture within political
parties, which requires strict party discipline and control of
individual MPs by party leaders, is too strong for this. But it is a
first small step towards making our democratic Parliament relevant
once more.299

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: 300
• First, South Africa has been a one-party dominant political system since
the dawn of democracy in 1994. Many of the leaders of the dominant
party serve in Cabinet which, in turn, initiates legislation in accordance
with the mandate of the majority party.301
• Second, members of the NA are elected via the closed list proportional
representation system. They 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 the party leadership.302
• Third, the current governing party, the ANC, ‘is a highly centralized
organisation where power has become increasingly concentrated in the
hands of the President … and the party leadership’.303
• Fourth, 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.304
• Last, the political culture of the governing ANC is one in which internal
debate flourishes but once a decision is taken, ordinary members tend to
defer to the leadership who serve in Cabinet.305
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, the voters endorse this programme in an election.
The party then has a democratic mandate to implement the policies for
which it was elected as the governing party. However, no party can foresee
all eventualities and therefore does not place its entire legislative
programme before the electorate during an election. This is why – as we
have seen – the Constitution requires Parliament to facilitate public
involvement in the law-making process. Be that as it may, voters elected a
party to lead the government and expect the leadership of the party to take
the initiative and to formulate policies and eventually legislation to give
effect to such policies.
The process of law making through the initiative of the executive, the
normal way in which laws are passed, can be simplified as follows:
• Policy is formulated via various channels, including through Nedlac,
through internal party discussions and Cabinet discussions which finally
results in a draft Bill which is eventually approved by Cabinet.
• After Cabinet has approved the draft Bill, the Cabinet Minister
responsible for the policy in question usually first introduces the Bill in
the NA or, in some cases, the NCOP. This is referred to as the first
reading.
• The Bill is then referred to the appropriate portfolio committee for
review and amendment after facilitation of public involvement as
discussed above. This is referred to as the second reading and the Bill is
considered ready for passing.
• 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.306
• Once both Houses of Parliament 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
or she has reservations about its constitutionality. In this case, the
President must refer the Bill back to the NA for reconsideration.307
Figure 4.3 The law-making process
The Constitution regulates the manner in which Bills may be introduced in
Parliament during the law-making process. The Constitution prescribes
different procedures for Bills amending the Constitution,308 ordinary Bills
not affecting provinces,309 ordinary Bills affecting provinces 310 and
money Bills.311 In Tongoane and Others v National Minister for
Agriculture and Land Affairs and Others, the Constitutional Court stated
that it is therefore important that a Bill must first be classified into or tagged
as one of these four categories to determine which procedure should be
followed in enacting the Bill.312 Tagging is important because the
procedures for the passing of the various kinds of Bills differ with some
procedures being more onerous than others. The Joint Rules of Parliament
establish the Joint Tagging Mechanism (JTM) which consists of the Speaker
and Deputy Speaker of the NA and the Chairperson and Deputy
Chairperson of the NCOP.313 The function of the JTM is, among other
things, to make final rulings as to the classification of Bills.314
The Constitutional Court clarified the test for tagging a Bill in
Tongoane.315 It is important to note that a distinction is drawn between the
characterisation of a Bill for purposes of deciding whether the Bill affects
the provinces or not (something we deal with in chapter 8 of this book) and
its tagging. As the Constitutional Court pointed out, for the purposes of
tagging, we do not enquire into the substance or the true purpose and effect
of the Bill. Rather, what matters is whether the provisions of the Bill ‘in
substantial measure fall within a functional area’ which the Constitution
empowers provinces to legislate on. The test to be adopted when tagging
Bills is therefore called the ‘substantial measures test.316 This test for
classification or tagging is therefore different from that used by the Court to
characterise a Bill in order to determine whether either the national or the
provincial legislature has the legislative competence to enact the law (with
which we deal in chapter 8 of this book). The latter test ‘involves the
determination of the subject-matter or the substance of the legislation, its
essence, or true purpose and effect, that is, what the [legislation] is
about’.317 As the Court pointed out in Tongoane:
There is an important difference between the ‘pith and
substance’ test and the ‘substantial measure’ test. Under
the former, provisions of the legislation that fall outside
of its substance are treated as incidental. By contrast, the
tagging test is distinct from the question of legislative
competence. It focuses on all the provisions of the Bill in
order to determine the extent to which they substantially
affect functional areas listed in Schedule 4 and not on
whether any of its provisions are incidental to its
 substance. The test for tagging must be informed by its
purpose. Tagging is not concerned with determining the
sphere of government that has the competence to
legislate on a matter. Nor is the process concerned with
preventing interference in the legislative competence of
another sphere of government. The process is concerned
with the question of how the Bill should be considered by
the provinces and in the NCOP, and how a Bill must be
considered by the provincial legislatures depends on
whether it affects the provinces. The more it affects the
interests, concerns and capacities of the provinces, the
more say the provinces should have on its content.318
The purpose of tagging is therefore to determine the nature and extent of the
input of provinces (through the NCOP) on the contents of legislation
affecting them. Tagging also determines whether the Bill should be passed
with a simple majority or according to special procedures with super
majority. Because the Constitution attaches considerable importance to the
voice of the provinces in legislation affecting them, tagging is therefore
pivotal. This is because – as we show elsewhere – depending how a Bill is
tagged, the NCOP will either have more or less power in the passing of the
Bill.
Tagging also reflects the fact that government under our Constitution ‘is
constituted as national, provincial and local spheres of government which
are distinctive, interdependent and interrelated’.319 As we shall see in
chapter 8 of this book, legislative functions between the national and
provincial spheres of government are not rigidly assigned to each sphere
and many important functions are shared. This requires co-operation
between the various spheres of government which ‘include the requirement
that each sphere of government must “respect the constitutional status,
institutions, powers and functions of government in the other spheres” and
“co-operate with one another in mutual trust and good faith by … co-
ordinating their actions and legislation with one another”.’ 320 As the
NCOP helps to facilitate co-operative government in the law-making
process, it should be accorded the requisite respect by ensuring that Bills
are tagged in the correct manner.
As mentioned above, Bills can be tagged in at least four different ways
after which different requirements apply to the passing of the Bill
depending on how it was tagged.
First, a Bill can be tagged as a section 74 Bill because it is a Bill
amending the Constitution. Section 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.
Section 1 – which contains the founding provisions of the Constitution –
can only be changed with the support of 75% of the members of the NA and
the support of at least six of the nine provincial delegations to the
NCOP.321
Bills amending the Bill of Rights can only be changed with the support
of two-thirds of the members of the NA and six of the nine provincial
delegations in the NCOP.322
Any other provision of the Constitution may be amended by a Bill
passed by the NA with a supporting vote of at least two-thirds of its
members. The support of six of the provincial delegations to the NCOP is
not required for these ordinary amendments to the Constitution unless the
proposed amendment ‘relates to a matter that affects the [NCOP]; or alters
provincial boundaries, powers, functions or institutions; or amends a
provision that deals specifically with a provincial matter’.323
To protect the powers and functions of individual provinces in the case
of a Bill that concerns only a specific province or provinces, the NCOP may
not pass the Bill or the relevant part unless it has been approved by the
legislature or legislatures of the province or provinces concerned.324 This
means that a Bill that would amend the provincial boundary between, for
example, Limpopo Province and Mpumalanga can only be passed with the
approval of both the legislatures of Limpopo and Mpumalanga and only if,
in addition to this, six of the nine provincial delegations support the
amendment.
Second, Bills can be tagged as section 75 Bills or ordinary Bills that do
not affect the Provinces. When a Bill is tagged as a section 75 Bill it can
only be introduced in the NA (not in the NCOP).325 Once passed by the
NA, the NCOP must vote on the Bill, but in this case, members of the
NCOP do not vote by delegation. Instead, in terms of section 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, pass the Bill subject to amendments
proposed by it or reject the Bill.326 If the NCOP passes the Bill without
proposing amendments, the Bill must be submitted to the President for
assent.
If the NCOP rejects the Bill or passes it subject to amendments, the NA
must reconsider the Bill, taking into account any amendment proposed by
the NCOP. Because it is a section 75 Bill that does not affect the provinces,
the NA has the power to override the NCOP amendments by passing the
original Bill in the normal manner. In this case, the amendments made by
the NCOP will fall away and the original Bill passed by the NA will be sent
to the President for assent.
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 the President. Alternatively,
the NA may decide not to proceed with the Bill at all. In this case, the Bill
will lapse and will not become law.327
When considering these procedures it is important to note the differences
between the legislative process to be followed when a Bill is tagged as a
section 75 Bill and when it is tagged as a section 76 Bill and the relatively
powerful role of the NA in the passing of the former compared to the latter.
The most important difference is that a section 75 Bill can, in effect, be
passed by the NA without support by the NCOP. This would become
important if the majority party in the NA does not enjoy a majority in the
NCOP, for example when less than 45 of the delegates in the NCOP are
from the majority party. The second House could then conceivably try to
obstruct the legislative programme of the majority party in the NA,
something – as we shall see – that it may be able to do with section 76 Bills
but not with section 75 Bills. This is because the NCOP represents the
interest of the provinces in Parliament and will play a much more powerful
role in the passing of legislation in cases where the draft legislation affects
the provinces.
Third, Bills can be tagged as section 76 Bills or ordinary Bills affecting
the provinces. A Bill will be tagged in 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.328 It will also be
tagged as a section 76 Bill if it purports to intervene in Schedule 5 matters
(in terms of section 44(2)) and other financial matters affecting the
Provinces.329 A Bill dealing with the seat of Parliament must be similarly
tagged.330 If the provisions of a Bill in substantial measure fall within the
functional area listed in Schedule 4, it will be dealt with under
section 76.331
Tagging a Bill as a section 76 Bill is important as this gives more weight
to the position of the NCOP in the passing of the Bill. Unlike with a
section 75 Bill, the Bill can be introduced in either the NA or the NCOP.
Once the Bill has been passed in the House in which it was introduced,
either the NA or the NCOP (the first House), it is sent to the other House
(the second House) to pass, amend or reject it. If the second House passes
the Bill without amendment, the Bill must be submitted to the President for
assent. If the Bill is passed by the second House with amendments, it must
be referred back to the first House which passed it. If that House passes the
amended Bill, it must be submitted to the President for assent. However, if
the second House which considers the Bill rejects the Bill, or if the first
House which passed the Bill refuses to pass an amended Bill referred back
to it, the Bill and, where applicable, also the amended Bill, must be referred
to a Mediation Committee.332
The Mediation Committee is designed as a mechanism to try to reconcile
differences between the two Houses of Parliament in line with the principle
of co-operative government. It consists, first, of nine members of the NA
elected by the NA. Each political party with seats in the Assembly is
proportionally represented on the Committee. Second, there are another
nine delegates – one from each provincial delegation in the NCOP. In effect,
these delegates are from the political party with a majority of delegates in
the NCOP delegation.333
 The Mediation Committee can only make a decision if at least five of the
representatives of the NA and at least five of the representatives of the
NCOP agree to support it.334 The Mediation Committee can agree to
support the Bill as passed by the NA, the amended Bill as passed by the
NCOP or its own version of the Bill.335 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.336 This means that it is important whether the Bill
was first introduced in the NA or the NCOP. 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.
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. 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. 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. 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. 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.
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 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.

PAUSE FOR REFLECTION

What happens when the NA and NCOP are

controlled by different majority parties?
The section 76 mechanism for passing ordinary legislation
affecting the provinces will probably only become important
in a case where one political party or a coalition of parties
controls the NA while that party or coalition does not
control the NCOP. This may happen if the majority party
gains a substantial proportion of the votes in large
provinces but loses its majority support in at least five
provinces, which will then be governed by another political
party or a coalition of political parties.
For example, the governing party could win 53% of the
vote nationally. This will entitle it to 53% of the seats in the
NA and its leader will be elected President. This President
will appoint a Cabinet, usually from among the members of
the winning party. However, if an opposition party wins 40%
of the vote nationally, it will be entitled to only 40% of the
seats in the NA. It may nevertheless have garnered a
majority of support in five provinces, giving it control of five
of the nine delegations to the NCOP. If a section 76 Bill is
now proposed by the Cabinet and supported by the 53% of
members of the majority party in the NA, it will not be
passed into law unless the opposition party agrees to it as
it would control five of the nine provincial delegation votes
and would, in effect, be able to veto the Bill.
Fourth, section 77 or money Bills require different procedures for their
passing. 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.337 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,338 these procedures are set
down in the Money Bills Amendment Procedure and Related Matters
Act.339 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. If the President has reservations about the constitutionality
of the Bill, he or she must specify what these reservations are when he
refers a Bill back to Parliament.340 However, the President cannot refuse to
sign the Bill because he or she does not support any aspect of the Bill for
political reasons. In other words, 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. As all
constitutional obligations must be performed diligently and without
delay,341 the President is required to sign a Bill duly passed by Parliament
within a reasonable time. If the President refers the Bill back to Parliament
owing to concerns about its constitutionality, Parliament can address the
President’s concerns. If the reconsidered Bill fully accommodates the
President’s reservations, then he or she must sign it. 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. 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. 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.342 If the Constitutional Court decides that the Bill
is constitutional, the President must assent to and sign it as envisaged in
section 79(5).
In Ex Parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill,343 the Constitutional Court spelled out,
first, the circumstances under which the President is allowed to refer a Bill
to the Constitutional Court, and, second, the scope of the Court’s power to
consider the constitutionality of the Bill. There were three main questions
that the Constitutional Court had to consider in this judgment, namely:
• whether the Court was required to consider only the reservations that the
President had expressed, or whether it can and should direct its attention
more widely
• whether the Court, in determining the Bill’s ‘constitutionality’, should
examine every provision of the Bill so as to certify conclusively that in
every part it accords with the Constitution
• whether the Court’s finding regarding the Bill’s constitutionality or
otherwise precludes or restricts later constitutional adjudication
regarding its provisions once enacted.344
The Constitutional Court found that it need only consider the reservation
that the President has expressed when he or she refers to Bill to the
Constitutional Court. Since the Constitutional Court need only consider
reservations expressly specified by the President regarding the Bill’s
constitutionality, it does not have to consider the Bill in its entirety to
determine its constitutionality by examining each and every provision. The
Court also found that the decision regarding the constitutionality of the Bill
does not preclude future constitutional adjudication regarding its provisions
once enacted, except those provisions already determined during the
consideration of the President’s reservation.345 The Court left open
whether it could in such proceedings consider the constitutionality of
provisions not referred to by the President which are in obvious conflict
with the Constitution.346
Even after a Bill has been duly passed by Parliament and signed into law
by the President, after which the Bill becomes known as an Act of
Parliament, the constitutionality of the Act can be challenged if a sufficient
number of MPs applies to the Constitutional Court for an order declaring
that all or part of an Act of Parliament is unconstitutional.347 Such
application can only be launched if it is supported by at least one-third of
the members of the NA and if it is made within 30 days of the date on
which the President assented to and signed the Act.348 The Constitutional
Court is given the power to stall the implementation of the Act referred to it
in this manner and can order that all or part of an Act that is the subject of
an application has no force until the Court has decided the application, but
only if the interests of justice require this and the application has a
reasonable prospect of success.349

Table 4.2 Bills passed by Parliament in 1999 and 2000 350

Type of Bill 1999 2000

Section 76(1) Bills affecting provinces, introduced in the NA 05 08

Section 76(2) Bills affecting the provinces, introduced in the

14 12
NCOP

Section 77 money Bills 06 06

Section 75 Bills not affecting provinces 33 44

Section 74(3) Bills amending the Constitution 02 00

Total 60 70
4.5.6 Delegation of legislative powers to executive or
other legislatures
According to section 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. This power relates
to the assignment of power to other legislative spheres of government. It is
therefore explicitly provided in the Constitution that Parliament is allowed
to assign its law-making power, except the power to amend the
Constitution, to provincial legislative and municipal councils. Where the
national 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 or concurrent functional areas in which provincial legislatures
have the competence to legislate.
A more difficult question arises where Parliament delegates its law-
making powers to the executive. This kind of delegation is not unusual as
Parliament is not always well equipped to formulate detailed provisions
regarding the implementation and regulation of laws. In Executive Council
of the Western Cape Legislature and Others v President of the Republic of
South Africa and Others, the Constitutional Court stated that in a modern
state, Parliament cannot be expected to deal with all such matters itself and
it is therefore necessary for effective law making to read this power
delegating such legislative functions to other bodies into the
Constitution.351
However, there are limits to what kind of law-making powers can be
delegated and to whom.352 In Executive Council of the Western Cape
Legislature, the Constitutional Court stated that although there is nothing in
the Constitution which prohibits Parliament from delegating subordinate
regulatory authority to other bodies, there is ‘a difference between
delegating authority to make subordinate legislation within the framework
of a statute under which the delegation is made, and assigning plenary
legislative power to another body …’ 353 The question in each case would
be whether, given the structure of the Constitution and the relevant
empowering text, the Constitution permits a delegation of such law-making
power or not. The Constitution uses a range of expressions when it confers
legislative power on Parliament and the wording used will often give an
indication of whether delegations would be permissible. As Ngcobo stated
in Executive Council of the Province of the Western Cape v Minister for
Provincial Affairs and Constitutional Development and Another, Executive
Council of KwaZulu-Natal v President of the Republic of South Africa and
Others:
Sometimes [the Constitution] states that ‘national
legislation must’; at other times it states that something
will be dealt with ‘as determined by national legislation’;
and at other times it uses the formulation ‘national
legislation may’. Where one of the first two formulations
is used, it seems to me to be a strong indication that the
legislative power may not be delegated by the
Legislature, although this will of course also depend
upon context.354
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. To this end, as stated by the
Constitutional Court in Justice Alliance of South Africa v President of
Republic of South Africa and Others, Freedom Under Law v President of
Republic of South Africa and Others, Centre for Applied Legal Studies and
Another v President of Republic of South Africa and Others, we must
consider ‘the nature and extent of the delegation’.355
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
within the framework of an empowering statute and ‘assigning plenary
legislative powers to another body’.356 Where the doctrine of
parliamentary sovereignty governs, Parliament may delegate as much
power as it chooses. In a constitutional democracy, however, such as that
operating in South Africa, Parliament may not ordinarily delegate its
‘essential legislative functions’ to the executive.357 This means that
Parliament can delegate some of its powers to the executive, most notably
through delegating the power to make regulations in terms of legislation
passed by Parliament to individual Ministers or to the President. However,
Parliament may not delegate its plenary legislative power, that is, the power
to make original legislation, to an executive authority such as the President
or a Cabinet Minister as such a delegation will breach the separation of
powers doctrine.358 It may only delegate the power to make subordinate
legislation such as proclamations and regulations.359 This distinction
between original and subordinate legislation is drawn from the fact that
when Parliament makes legislation, it does so in accordance with the
‘original’ legislative powers conferred on it by the Constitution. However,
the development of legislation, such as proclamations, by the executive
refers to the law that is made by virtue of the power granted from a lawful
source, such as the Constitution.360 Thus, although the separation of
powers doctrine does not allow one branch of government to exercise a
power exclusively allocated to another branch of government, it can
exercise powers delegated to it by another branch as long as this power is
not exclusively reserved for the other branch of government.
The question whether Parliament can assign its law-making power to the
executive was first answered in the case of Executive Council of the
Western Cape Legislature. This case involved section 16A(1) of the Local
Government Transition Act 361 that aimed to transform local government
in line with the new constitutional dispensation. This section provided that
‘the President may amend this Act and any schedule thereto by
proclamation in the gazette’. This section therefore effectively conferred on
the President, the head of the executive branch of government in the
national sphere of government, the power to amend the Act by
proclamation. The President used this power to transfer certain functions
provided for in the Act from the provincial to the national sphere of
government. The Executive Council of the Western Cape Legislature
challenged the constitutionality of this section and the relevant
proclamation on the basis that Parliament cannot delegate its law-making
function to the executive. Chaskalson P, as he then was, held:
[t]he legislative authority vested in Parliament under
section 37 of this [interim] Constitution is expressed in
wide terms – ‘to make laws for the Republic in
accordance with this Constitution’. In a modern state,
detailed provisions are often required for the purpose of
implementing and regulating laws, and Parliament
cannot be expected to deal with all such matters itself.
There is nothing in the Constitution which prohibits
Parliament from delegating subordinate regulatory
authority to other bodies. The power to do so is
necessary for effective law-making. It is implicit in the
power to make law for the country and I have no doubt
that under our Constitution Parliament can pass
legislation delegating such legislative functions to other
bodies. There is, however, a difference between
delegating authority to make subordinate legislation
within the framework of a statute under which the
delegation is made, and assigning plenary legislative
power to another body, including, as section 16A does,
the power to amend the Act under which the assignment
is made.362
The Court then decided in this case that it was inconsistent with the doctrine
of separation of powers for Parliament to delegate the power to amend its
laws to the President as head of the executive.363 It argued that although
the need for assignment of subordinate legislative authority cannot be
overemphasised, the assignment of plenary legislative powers is a different
matter all together. This is not allowed under the new constitutional
dispensation as it could give rise to a constitutional crisis. The Court
indicated that the relevant constitutional provision which deals with
legislative authority is not merely directive but is peremptory. It therefore
cannot be said that the power to delegate primary legislative power is
implied in the Constitution. Therefore, Parliament cannot delegate its
original law-making power to the executive. It can only delegate the
making of subordinate legislation such as presidential proclamations and
ministerial regulations. The position is the same under the 1996
Constitution.364

PAUSE FOR REFLECTION

Parliament cannot delegate its plenary law-

making power to the President
In Justice Alliance, the Constitutional Court confirmed the
view that Parliament cannot delegate its plenary law-
making power to the President. The Court stated that one
should look at both textual and contextual indicators to
determine whether such a drastic delegation would be
permitted in terms of the separation of powers doctrine.
Section 176(1) of the Constitution states that the term of
office for a Constitutional Court judge is normally 12 years
‘except where an Act of Parliament extends the term of
office of a Constitutional Court judge’. Parliament had
passed section 8(a) of the Judges Remuneration and
Condition of Employment Act 365 which permitted the
further extension of the term of office of the Chief Justice if
requested to do so by the President. The President had
then relied on this section in an attempt to extend the term
of office of the former Chief Justice, Sandile Ngcobo. The
section on which the President relied was then challenged
in Court which declared it unconstitutional. The Court
confirmed that where the doctrine of parliamentary
sovereignty governs, Parliament may delegate as much
power as it chooses. However, in a constitutional
democracy, Parliament may not ordinarily delegate its
essential legislative functions, one of which would be to
delegate the power to extend the term of office of the Chief
Justice to the President.
 The Court provided several reasons for this view. In this
case, the power to extend the term of a Constitutional
Court judge goes to the core of the tenure of the judicial
office, judicial independence and the separation of powers.
It was therefore deemed to be an essential legislative
function that could not be delegated.366 The
independence of its judges is given vigorous protection by
means of detailed and specific provisions regulating their
appointment. The Chief Justice is at the pinnacle of the
judiciary and thus the protection of his or her independence
is just as important.367 Section 8(a) thus violated the
requirement for judicial independence as well as violating
the principle of separation of powers. This does not mean
that the term of office of judges of the Constitutional Court
could not be extended by Parliament in accordance with
section 176(1). However, if Parliament wished to do so, it
would have to pass legislation providing for such an
extension that applied to all judges of the Constitutional
Court.368
Apart from the legal point about the limits of the power of
Parliament to delegate its legislative powers to the
executive, this case also illustrates the need of members of
the legislature and the executive to follow the correct legal
route when they take action in terms of the Constitution
and the law. Had Parliament passed a law extending the
term of office of all Constitutional Court judges to 15 years,
there would not have been a successful challenge to the
move and the then Chief Justice would have been able to
serve as Chief Justice for another three years.

4.6 National House of Traditional Leaders

The 1996 Constitution provides for the recognition of the ‘institution, status
and role of traditional leadership’ in South Africa, provided that this is done
subject to the other provisions in the Constitution.369 It further provides for
the establishment of a House of Traditional Leaders by the passing of
national legislation. The Constitution envisages that this House of
Traditional Leaders will deal with matters relating to traditional leadership,
the role of traditional leaders, customary law and the customs of
communities observing a system of customary law.370 To this end,
Parliament passed the National House of Traditional Leaders Act (NHTLA)
371 which establishes a House of Traditional Leaders who serve for a term
of five years.372
The House is not democratically elected. Instead, the Act provides for
the election of senior traditional leaders or headmen or women by the
various provincial Houses of Traditional Leaders. If such Houses have not
been established, leaders serving on traditional councils would serve in the
National House of Traditional Leaders.373 At least a third of the members
of the House must normally consist of women. However, if the Minister is
satisfied that there is an insufficient number of women to participate in the
House, the Minister must, after consultation with the Premier of the
province in question and the provincial House concerned, determine a lower
threshold.374
Because the Constitution explicitly states that traditional leadership can
only be recognised in a manner that complies with the other provisions of
the Constitution, including the founding values of a democratic state that
embody the values of ‘universal adult suffrage … regular elections and a
multi-party system of government’,375 the role of the House of Traditional
Leaders is advisory in nature. It does not have the power to veto legislation
or to take part in a non-advisory role in the formal law-making processes
prescribed in sections 74 to 77 of the Constitution. Instead, it is empowered
to consider Parliamentary Bills referred to it by the Secretary to Parliament
in terms of section 18 of the Traditional Leadership and Governance
Framework Act (TLGFA).376 These Bills are any Bills ‘pertaining to
customary law or customs of traditional communities’.377 The National
House of Traditional Leaders is then required, within 30 days, to make any
comments about the Bill.378
 The House of Traditional Leaders is also empowered to ‘advise the
national government’ and to ‘make recommendations’ relating to policy and
legislation regarding traditional leadership, the role of traditional leaders,
customary law and the customs of communities observing a system of
customary law.379 The House of Traditional Leaders must also be
consulted on ‘national government development programmes that affect
traditional communities’.380
The other powers bestowed on the House of Traditional Leaders are
vague and of no binding consequence to the work of the national
legislature. These include the powers and duties to co-operate with the
provincial Houses of Traditional Leaders and to promote:
• the role of traditional leadership within a democratic constitutional
dispensation
• nation building
• peace, stability and cohesiveness of communities
• the preservation of the moral fibre and regeneration of society
• the preservation of the culture and traditions of communities
• socio-economic development and service delivery
• the social well-being and welfare of communities
• the transformation and adaptation of customary law and custom so as to
comply with the provisions of the Bill of Rights in the Constitution.381
The House of Traditional Leaders therefore does not have any direct
legislative powers and cannot veto legislation passed by Parliament. It is, in
essence, an advisory body aimed at ensuring that the interests of traditional
leaders and the communities represented by traditional leaders are
considered in the law-making process. Although the House of Traditional
Leaders must therefore be consulted on issues affecting traditional
communities, including the passing of legislation affecting traditional
communities, the consultation process does not afford traditional leaders
any powers to slow down or thwart the legislative programme of
Parliament.

SUMMARY
The Constitution establishes a bicameral Parliament consisting of two
Houses. The National Assembly (NA) is the directly elected House of
Parliament representing the interests of all the people, to which MPs are
elected in terms of a pure proportional representation electoral system.
The National Council of Provinces (NCOP) is the indirectly selected House
of Parliament representing the interests of the various provinces in the
national Parliament. The NCOP comprises provincial delegations consisting
of six permanent delegates appointed by each of the provincial legislatures
and four special delegates nominated from among the members of each of
the provincial legislatures.
The two Houses of Parliament together provide a forum for debate on
important issues; hold the executive organs of state in the national sphere of
government accountable to Parliament; exercise an oversight function over
the exercise of national authority and over other organs of state; and pass
national legislation. The NA is the more prominent and powerful of the two
Houses because it is directly elected and because it elects and can also
dismiss the President and the other members of the executive. The NA
therefore has more power to hold the executive accountable than the NCOP.
Members of Parliament (MPs) enjoy important rights and privileges to
protect their ability to take part in the various functions of Parliament
without fear of legal sanction. MPs enjoy the right to freedom of expression
in Parliament and in the various committees of Parliament and are insulated
from the law of defamation.
The various committees of Parliament – especially the various portfolio
committees that focus on the work associated with a specific government
department – are seen as the engine room of Parliament. Although members
of the NA and the NCOP can ask questions of members of the Executive
and have a right to have their questions answered, either orally in each of
the Houses or in written form, portfolio committees can call members of the
executive and departmental officials to testify before them to oversee the
work of the individual departments and to hold the members of the
executive accountable.
Legislation is normally formulated by the relevant government
department on the initiative of the Minister involved and then submitted to
Parliament for consideration. MPs can also formulate Bills, but in the past
this seldom happened. Even where members of opposition parties formulate
and table Bills, such Bills have only a small chance of being adopted by
Parliament because the majority party in Parliament will normally only
support legislation in accordance with its own programme and policies.
Without support from the majority party, Bills cannot be passed.
Once legislation is tabled in Parliament (after being approved by the
Cabinet), discussions on the details of such Bills tabled in Parliament occur
in portfolio committees who have the power to amend the draft legislation
before it is sent to the NA and the NCOP for approval. During this process,
members of the public have an important right to participate in the law-
making process and can make written and sometimes oral submissions to
the various portfolio committees about draft legislation.
Arguably, the most important power of Parliament is the power to pass
legislation. Bills must be tagged by a Joint Tagging Mechanism to
determine how Parliament will procedurally deal with the passing of the
draft legislation. Once portfolio committees have processed Bills, each of
the Houses of Parliament must consider and vote on a Bill. The Constitution
prescribes different procedures to be followed for the passing of Bills that
have been tagged as section 74, 75, 76 and 77 Bills. The Constitution also
requires that Bills amending the Constitution can only be passed by
enhanced majorities. Once both Houses of Parliament have passed the same
version of a Bill, it is sent to the President for signature. The President can
refer a Bill back to Parliament if he or she has reservations about the
constitutionality of aspects of the Bill. If the reservations are not dealt with,
the President can also refer the Bill to the Constitutional Court to determine
whether the reservations about the constitutionality of the Bill are valid or
not.
1 Ss 55 and 68 read with Schedules 4 and 5 of the Constitution.
2 See s 42(1) of the Constitution.
3 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 133.
4 Rautenbach, IM and Malherbe, EFJ (2009) Constitutional Law 5th ed 122.
5 Currie and De Waal (2001) 133. See generally Ackerman, B (2000) The new separation of
powers Harvard Law Review 113(3):633–729 at 682. According to Ackerman, the second
House ‘may enhance the deliberative character of political life’.
6 S 42(3) of the Constitution.
7 S 42(4) of the Constitution.
8 S 86 of the Constitution.
9 Ss 89 and 102 of the Constitution.
10 S 91(3) of the Constitution.
11 S 55(2) of the Constitution.
12 S 193(4) of the Constitution.
13 S 42(6) of the Constitution.
14 In terms of s 76(5) of the Constitution, an absolute majority of members of the NA – that is
200 or more of its members – is required to pass such legislation.
15 S 51(3) of the Constitution.
16 S 63(3) of the Constitution.
17 Currie and de Waal (2001) 131.
18 See Basson, DA and Viljoen, HP (1988) South African Constitutional Law 86–7.
19 It is true that s 1(d) of the Constitution states that the Republic of South Africa is a democratic
state founded on, inter alia, a multiparty system of government and that several other
provisions in the Constitution recognise the role of political parties in the legislative and
executive process. However, the exact relationship between the representatives of political
parties in the legislature and the executive on the one hand and the party leadership on the
other hand is never defined. S 19 guarantees for everyone the rights to form a political party; to
participate in the activities of, or recruit members for, a political party; and to campaign for a
political party or cause. S 57(2)(c) states that the rules of the NA must provide for financial and
administrative assistance to each party represented in the Assembly in proportion to its
representation to enable the party and its leader to perform their functions in the NA
effectively. S 57(2)(d) requires that the NA rules must recognise the leader of the largest
opposition party in the Assembly as the Leader of the Opposition.
20 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012).
21 Ramakatsa para 16.
22 S 46(1)(d) of the Constitution.
23 See ss 86, 89 and especially 102 of the Constitution.
24 Hiebert, JL ‘Constitutional experimentation: Rethinking how a Bill of Rights functions’ in
Ginsburg, T and Dixon, R (eds) (2011) Comparative Constitutional Law 307.
25 The disciplinary case lodged against former ANC Youth League leader, Julius Malema, and his
ultimate expulsion from the ANC illustrates the governing party’s insistence on party
discipline. See Mthembu, J (2012, 4 February) ANC statement on the National Disciplinary
Committee of appeal today available at http://www.anc.org.za/show.php?id=9363.
26 Requiring members to toe the party line on a particular vote on pain of sanction or disciplinary
proceedings is often referred to as a ‘three line whip’.
27 African National Congress Constitution, as amended and adopted at the 52nd National
Conference, Polokwane, 2007 available at http://www.anc.org.za/show.php?id=207.
28 S 25.3 of the African National Congress Constitution.
29 See Malefane, M (2012, 1 April) Turok going juju route? Sunday World available at
http://www.sundayworld.co.za/news/2012/04/01/turok-going-juju-route.
30 Friedman, S (2012, 6 August) State secrecy is the real threat to our security Business Day Live
available at http://www.businessday.co.za/articles/Content.aspx?id=128285.
31 Ss 57(1) and 70(1) of the Constitution.
32 S 45.
33 Ss 57 and 70.
34 Ss 57(2) and 70(2).
35 See generally Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly (CCT
16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC) (9 October 2012)
and also Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249
(CC); 2013 (11) BCLR 1297 (CC) (27 August 2013).
36 Ss 56 and 69 of the Constitution.
37 Parliament of the Republic of South Africa (2011, June) Rules of the National Assembly 7th ed
available at http://www.pmg.org.za/files/doc/2012/NA%20Rules%207th%20edition-1.pdf.
38 NA Rule 325(1). The Rules of the National Council of Provinces 9th ed (2008, March),
available at http://www.pmg.org.za/parlinfo/ncoprules, do not contain a similar provision and
merely state in Rule 103 that:
(1) For the purposes of performing its functions a committee may, subject to the
Constitution, legislation, the other provisions of these Rules and resolutions of
the Council –
(a) summon any person to appear before it to give evidence on oath or
affirmation, or to produce documents;
(b) receive petitions, representations or submissions from interested persons
or institutions;
(c) conduct public hearings;
(d) permit oral evidence, representations and submissions;
(e) determine its own procedure;
(f) meet at a venue determined by it, which may be a venue beyond the seat
of Parliament if the Council is not in session.
39 Ss 59(1)(b) and 72(1)(b).
40 Ss 59(1)(b) and 72(1)(b) of the Constitution.
41 Ss 59(2) and 72(2) of the Constitution.
42 The Rules of the NCOP also allow for certain limitations of public access to its committees.
Rule 110(1) affirms that:
[m]eetings of committees and subcommittees are open to the public, including the
media, and the member presiding may not exclude the public, including the media,
from the meeting, except when:
(a) legislation, these Rules or resolutions of the Council provide for the committee
or subcommittee to meet in closed session; or
(b) the committee or subcommittee is considering a matter which is –
(i) of a private nature that is prejudicial to a particular person;
(ii) protected under parliamentary privilege, or for any other reason privileged
in terms of the law;
(iii) confidential in terms of legislation; or
(iv) of such a nature that its confidential treatment is for any other reason
reasonable and justifiable in an open and democratic society.
43 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) para 300 (per Yacoob J dissenting) speaking not about the ‘public involvement’
requirements common to ss 59, 72 and 118 of the Constitution and which were central to the
matter before the court (at least in so far as s 118 was concerned), but rather about the ‘public
access’ requirements common to the same sections.
44 Mbete, S and February, J (2011, 5 April) Access to Parliament is a right not a privilege
Business Day Live available at http://www.bdlive.co.za/articles/2011/04/05/sthembile-mbete-
and-judith-february-access-to-parliament-is-a-right-not-a-
privilege;jsessionid=8485BDB17C0C6F9F61B042C08A00C41E.present1.bdfm.
45 Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013
(11) BCLR 1297 (CC) (27 August 2013).
46 See Rautenbach and Malherbe (2009) 147.
47 Griffith, JAG and Ryle, M (1989) Parliament: Functions, Practice and Procedures 85.
48 (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3 August
2006).
49 Act 117 of 1998. S 28(1) of the Municipal Structures Act provides that:
[pr]ovincial legislation in terms of section 161 of the Constitution must provide at
least –
(a) that councillors have freedom of speech in a municipal council and in its
committees, subject to the relevant council’s rules and orders as envisaged in
section 160(6) of the Constitution; and
(b) that councillors are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for –
(i) anything that they have said in, produced before or submitted to the council
or any of its committees; or
(ii) anything revealed as a result of anything that they have said in, produced
before or submitted to the council or any of its committees’.
S 28(2) goes on to provide that ‘[u]ntil provincial legislation contemplated in subsection (1)
has been enacted the privileges referred to in paragraphs (a) and (b) of subsection (1) will
apply to all municipal councils in the province concerned’.
50 Dikoko para 39.
51 Hatsell, J (1818) Precedents of Proceedings in the House of Commons Vol 1 2.
52 R v Paty (Case of the Men of Aylesbury) (1704) 2 Lord Raym 1105, 91 ER 817.
53 Ss 58(1)(a) and 71(1)(a) of the Constitution. See also NA Rule 44 and NCOP Rule 30.
54 Ss 58(1)(b) and 71(1)(b) of the Constitution read with NA Rule 44(2) and NCOP Rule 30(b).
55 (297/98) [1999] ZASCA 50; [1999] 4 All SA 241 (A) (26 August 1999).
56 De Lille (SCA) paras 2–3.
57 De Lille (SCA) para 8.
58 De Lille (SCA) para 9.
59 De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C).
60 Act 91 of 1963. This Act has been repealed and replaced with the Powers, Privileges and
Immunities of Parliament and Provincial Legislatures Act 4 of 2004.
61 De Lille (HC) para 25.
62 De Lille (HC) para 33.
63 De Lille (HC) paras 37–8.
64 De Lille SCA. See also O’Regan, K (2005) Checks and balances: Reflections on the
development of the doctrine of separation of powers under the South African Constitution PER
8(1):120–50 at 132–3.
65 De Lille (SCA) para 20.
66 A similar provision regarding the NCOP can be found in s 71(2).
67 De Lille (SCA) para 17.
68 De Lille (SCA) para 29.
69 De Lille (SCA) para 29–30.
70 NA Rules 52–4.
71 Ss 59(1)(a) and 72(1)(a) of the Constitution.
72 Houston, G, Liebenberg, I and Dichaba, W ‘The social dynamics of public participation in
legislative processes in South Africa’ in Houston, G (ed) (2001) Public Participation in
Democratic Governance in South Africa 142.
73 See generally Hassen, E (1998) The Soul of a Nation: Constitution-Making in South Africa
ch 7 on the inclusive and participatory process involved in the drafting of the 1996
Constitution. The process leading up to the adoption of the 1993 Constitution can hardly be
said to have been inclusive and there was little attempt to ensure the participation of the
general public in the constitutional negotiations at CODESA. See also Du Plessis, L and
Corder, H (1994) Understanding South Africa’s Transitional Bill of Rights.
74 Report of the Independent Panel Assessment of Parliament (Govender Report) 53 available at
http://www.info.gov.za/view/DownloadFileAction?id=94365.
75 See Currie and De Waal (2001) 15 and Roux, T ‘Democracy’ in Woolman, S and Bishop, M
(eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 10.14.
76 Houston et al (2001) 142.
77 Houston et al (2001) 149.
78 Merafong Demarcation Forum and Others v President of the Republic of South Africa and
Others (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC)
(13 June 2008); Matatiele Municipality and Others v President of the Republic of South Africa
and Others (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC)
(27 February 2006); Matatiele Municipality and Others v President of the Republic of South
Africa and Others (2) (CCT73/05A) [2006] ZACC 12; 2007 (1) BCLR 47 (CC) (18 August
2006).
79 A similar provision in s 118(1)(a) of the Constitution deals with the need of provincial
legislatures to facilitate public involvement in the law-making process.
80 See Doctors for Life para 209 where Ngcobo J for the majority held that ‘[t]he obligation to
facilitate public involvement is a material part of the law-making process. It is a requirement of
manner and form. Failure to comply with this obligation renders the resulting legislation
invalid’.
81 Doctors for Life para 209.
82 Doctors for Life para 115.
83 Doctors for Life para 116 and para 227 where Sachs J (concurring) stated: ‘Public involvement
in our country has ancient origins and continues to be a strongly creative characteristic of our
democracy. We have developed a rich culture of imbizo, lekgotla, bosberaad, and indaba.
Hardly a day goes by without the holding of consultations and public participation involving
all “stakeholders”, “role-players” and “interested parties”, whether in the public sector or the
private sphere. The principle of consultation and involvement has become a distinctive part of
our national ethos. It is this ethos that informs a well-defined normative constitutional structure
in terms of which the present matter falls to be decided.’
84 Doctors for Life para 122.
85 Doctors for Life para 122.
86 Doctors for Life para 125.
87 Doctors for Life para 127. See also Khosa and Others v Minister of Social Development and
Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03)
[2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 49
where the Court stated that ‘[i]n dealing with the issue of reasonableness, context is all
important’.
88 Doctors for Life para 128.
89 Doctors for Life para 129.
90 Doctors for Life para 131.
91 Doctors for Life para 278.
92 Doctors for Life para 292.
93 S 42(1). See also Devenish, GE (2005) The South African Constitution 219 and Currie and De
Waal (2001) 133.
94 S 46(1) of the Constitution.
95 S 46(1) and (2) of the Constitution.
96 Act 73 of 1998.
97 S 1(d) of the Constitution.
98 See Rautenbach and Malherbe (2009) 126. For a detailed look at electoral systems and choices,
see generally Reynolds A (1999) Electoral Systems and Democratisation in Southern Africa.
99 Currie and De Waal (2001) 134.
100 For a brief history of why proportional representation was the electoral system of choice, see
Klug, H (2010) The Constitution of South Africa: A Contextual Analysis 156–8. In particular,
Klug notes at 158 that ‘the option of proportional representation became a means to avoid the
contentious task of immediate demarcation [into respective constituencies] and a way to
guarantee the effective participation of small parties, including those with minority ethnic or
racially based constituencies’.
101 See Rautenbach and Malherbe (2009) 127.
102 For example, the Democratic Alliance (DA) provides for a complex selection process for
members who stand for public office through an Electoral College, which is not necessarily a
representative body. See Democratic Alliance (2010) Regulations for the Nomination of
Candidates available at http://www.da.org.za/about.htm?action=view-page&category=469.
103 Ramakatsa para 73.
104 Ramakatsa para 74. S 19 of the Constitution states:
(1) Every citizen is free to make political choices, which includes the right –
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political
party; and
(c) to campaign for a political party or cause.
105 Ramakatsa para 74.
106 See generally Norris, P (1997) Choosing electoral systems: Proportional, majoritarian and
mixed systems International Political Science Review 18(3):297–312 at 302–4.
107 To gain a seat in the NA, a party has to obtain a minimum number of votes. The minimum
number of votes per seat is determined by dividing the total number of votes cast by the
number of seats plus one. The result plus one, disregarding fractions, then becomes the
minimum number of votes per seat. In the 2009 elections, the minimum numbers of votes per
seat was 44 092 votes (0,25%). An important consequence of the fact that a party had to obtain
a minimum number of votes is that the votes cast for any party that does not obtain this
minimum will be ‘wasted’. The wastage, however, is far less than in a constituency-based
system.
108 On the dangers of gerrymandering, see generally Issacharoff, S (2002) Gerrymandering and
political cartels Harvard Law Review 116(2):593–648 at 593.
109 See the data compiled by the Inter-Parliamentary Union (2013) Women in national parliaments
available at http://www.ipu.org/wmn-e/classif.htm.
110 Hendricks, C ‘Party strategy not popular prejudice: Electoral politics in South Africa’ in Piper,
L (ed) (2005) South Africa’s 2004 Election: The Quest for Democratic Consolidation, EISA
Research Report No 12, 66 at 82; Lowe Morna, C, Rama, K and Mtonga, L (2009, 15 July)
Gender in the 2009 South African elections, Gender links for equality and justice, available at
http://www.genderlinks.org.za/article/gender-in-the-2009-south-african-elections-2009-07-15.
111 De Vos, P ‘South Africa’s experience with proportional representation’ in De Ville, J and
Steytler, N (1996) Voting in 1999: Choosing an Electoral System 29–43.
112 Norris (1997) 306. See generally Matlosa, K (2004) Electoral systems, constitutionalism and
conflict management in Southern Africa African Journal on Conflict Resolution 4(2):11–53 at
34.
113 See Currie and De Waal (2001) 134.
114 Currie and De Waal (2001) 134.
115 Currie and De Waal (2001) 134.
116 Matlosa (2004) 27.
117 Matlosa (2004) 27. See also Currie and De Waal (2001) 135. Gerrymandering is a practice that
attempts to establish a political advantage for a particular party or group by manipulating
geographical boundaries to create partisan or incumbent-protected districts. See Britannica
Academic Edition available at
http://www.britannica.com/EBchecked/topic/231865/gerrymandering.
118 See De Vos, P (2012, 14 August) Towards a parliament for the people Constitutionally
Speaking available at http://constitutionallyspeaking.co.za/towards-a-parliament-for-the-
people/.
119 See s 46(1)(c).
120 S 190(1)(a)–(c) of the Constitution. See also the relevant provisions of the Electoral Act 73 of
1998 and the Local Government: Municipal Electoral Act 27 of 2000.
121 S 181(2).
122 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June
2001).
123 Langeberg Municipality para 27.
124 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999) para 98.
125 New National Party paras 99–100.
126 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999).
127 August paras 3 and 20.
128 August para 17.
129 August para 16.
130 New National Party para 11.
131 The changes brought about by the amendment included ss 8(2)(f), and 24B(1) and (2) which
read as follows:
8(2) The chief electoral officer may not register a person as a voter if that person–
…
(f) is serving a sentence of imprisonment without the option of a fine.
…
24B(1) In an election for the National Assembly or a provincial
legislature, a person who on election day is in prison and not
 serving a sentence of imprisonment without the option of a fine
and whose name appears on the voters’ roll for another voting
district, is deemed for that election day to have been registered
by his or her name having been entered on the voters’ roll for the
voting district in which he or she is in prison.
24B(2) A person who is in prison on election day may only vote if he or
she is not serving a sentence of imprisonment without the option
of a fine.
132 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2004).
133 NICRO paras 39–46.
134 NICRO paras 39–46.
135 NICRO paras 47–51.
136 NICRO para 49.
137 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC)
(12 March 2009).
138 (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611 (CC)
(12 March 2009).
139 Richter para 108.
140 Richter paras 52–4.
141 AParty paras 56–8.
142 AParty para 59.
143 S 49(1) of the Constitution.
144 S 47(1)(b) of the Constitution.
145 S 47(1)(c) of the Constitution.
146 S 47(1)(d) of the Constitution.
147 S 47(1)(e) of the Constitution.
148 S 47(3)(b) of the Constitution read with NA Rule 20 which states: ‘A member who wishes to
absent himself or herself from sittings of this House, or of any other Parliamentary forum of
which he or she is a member, for 15 or more consecutive days on which this House or such
forum sits, shall, before so absenting himself or herself, obtain the leave of this House or of a
committee of this House authorised to grant such leave.’ A note states that this rule will have to
be adapted in accordance with s 47(3)(b) of the Constitution, but this has not yet been done,
leaving doubt about what consequences will follow if a person is absent for longer than
15 days without permission.
149 See s 47(3)(c) of the Constitution as amended by s 2 of the Constitution Fifteenth Amendment
Act of 2008.
150 S 49(1) of the Constitution.
151 S 49(2) of the Constitution.
152 S 50(2) read with s 49(2) of the Constitution.
153 S 51(1) of the Constitution.
154 S 86(1) and (2) of the Constitution read with NA Rule 8.
155 S 52 of the Constitution read with NA Rules 9 and 13.
156 S 51(1) of the Constitution.
157 S 51(2) of the Constitution.
158 S 51(3) of the Constitution. Sittings and recesses of the NA are covered generally in Ch 4 of
the NA Rules.
159 NA Rule 24 states: ‘Before directing under section 51(3) of the Constitution that this House
shall sit at a place other than the Houses of Parliament in Cape Town, the Speaker shall consult
the Leader of the House and the Chief Whip of each party represented in this House.’
160 In modern parliamentary systems, however, ‘legislatures have limited responsibility for making
laws. Instead, laws are usually prepared and drafted by the executive and presented to the
legislature for approval. This inevitably means that relatively few laws will emanate from the
legislature itself.’ This is true of South Africa. See Nijzink, L and Murray, C (2002) Building
Representative Democracy: South Africa’s Legislatures and the Constitution 73. See also Klug
(2010) 169.
161 S 55 of the Constitution.
162 See 4.5 below.
163 NA Rule 25(1).
164 S 53(1)(a) of the Constitution read with NA Rule 25(2)(a).
165 S 53(1)(b) of the Constitution read with NA Rule 25(2)(b).
166 NA Rule 26.
167 S 53(1)(c) of the Constitution.
168 Ss 74(2)(a) and 89(1) of the Constitution.
169 S 74(1)(a) of the Constitution.
170 S 53(2)(a) of the Constitution.
171 S 53(2)(b) of the Constitution.
172 This is confirmed by NA Rule 89(2).
173 S 55(2).
174 Currie and De Waal (2001) 142. See also Gauteng Provincial Legislature v Killian and
29 Others [562/98] [2000] ZASCA 75; 2001 (2) SA 68 (SCA); [2001] 1 All SA 463 (A) (29
Nov 2000) para 30.
175 See Killian para 26.
176 See NA Rules Ch 12.
177 NA Rule 121.
178 NA Rule 125.
179 NA Rule 126.
180 S 42(4) of the Constitution.
181 S 104 of the Constitution.
182 Extract from a presentation at the Meeting of the World’s Senates, 14 March 2000, Paris, cited
in Nijzink and Murray (2002) 41.
183 Doctors for Life para 79. See generally Murray, C and Simeon, R (1999) From paper to
practice: The National Council of Provinces after its first year SA Public Law 14(1):96–141 at
98–101 for a discussion on the role of the NCOP.
184 Murray, C and Simeon, R (2006) Tagging Bills in Parliament: Section 75 or section 76? SALJ
123(2):232–63 at 236.
185 Murray and Simeon (2006) 236.
186 Doctors for Life para 80. See also Certification of the Constitution of the Republic of South
Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253
(CC) (6 September 1996) para 227; Malherbe, EFJ (1998) The South African National Council
of Provinces: Trojan horse or white elephant? TSAR 1:77–96 at 82; Venter, F (2000)
Constitutional Comparison: Japan, Germany, Canada and South Africa as Constitutional
States 248.
187 Germany’s Basic Law was drafted in 1949 and the drafters refrained from using the term
‘constitution’ because the Basic Law was drafted to govern a part of Germany for a transitional
 period that would last until reunification. On reunification, the Basic Law would cease to exist
and a constitution for all German people would be adopted. On 3 October 1990, German unity
was achieved within the framework of the Basic Law. The Basic Law is now thought of as an
all-German Constitution despite the fact that it continues to go by the name of Basic Law and
has come to ‘assume the character of a document framed to last in perpetuity’. See Kommers,
DP (1997) The Constitutional Jurisprudence of the Federal Republic of Germany 30 and
Kommers, DP ‘The Basic Law of the Federal Republic of Germany: An assessment after forty
years’ in Merkel, PH (ed) (1989) The Federal Republic of Germany at Forty 133 referring to
the Basic Law as having taken on ‘the status of a genuine Constitution’.
188 Art 50 of the Basic Law for the Federal Republic of Germany provides: ‘The Länder
participates through the Bundesrat in the legislation and administration of the Federation.’
189 Doctors for Life para 80 fn 61.
190 BVerfGE 1, 300.
191 See also De Villiers, B (1994) Intergovernmental relations: The duty to co-operate – A German
perspective SA Public Law 9(1–2):430–7 at 432–3.
192 S 60 of the Constitution.
193 Each province is represented by a single delegation appointed in terms of a formula prescribed
by the Determination of Delegates (National Council of Provinces) Act 69 of 1998 with the
aim of ensuring the inclusion of all parties represented in a provincial legislature on the basis
of proportional representation.
194 S 60(2)(a) and (b) of the Constitution.
195 S 60(2)(a) and (b) of the Constitution.
196 S 60(2)(a)(i) and (ii) of the Constitution.
197 S 60(2)(a)(i) of the Constitution.
198 S 60(3) of the Constitution.
199 S 61(4) of the Constitution.
200 S 62(2) and (4)of the Constitution.
201 Bishop, M and Raboshakga, N ‘National legislative authority’ in Woolman and Bishop (2013)
17.5.
202 S 62(4)(c) of the Constitution. In Van Zyl v New National Party and Others (2000/002) [2003]
ZAWCHC 17; [2003] 3 All SA 737 (C) (22 May 2003) para 75, the Cape High Court found
that the exercising of the authority to recall a permanent delegate to the NCOP in terms of
s 62(4)(c) of the Constitution constitutes the exercising of a public power because such a
decision has an influence on how the NCOP, the delegations of the respective provinces and
the joint committees on which delegates may serve are constituted. Such a decision may affect
the manner in which those bodies perform their functions and duties and this, in turn, may
affect the interests of the community at provincial and national levels. Accordingly, the
exercising of this authority has a strong public component.
203 Van Zyl para 90.
204 In First Certification para 328, the Constitutional Court held that in some respects the Senate
has greater power than the Council; in other respects it has less. We disagree. While the
collective power of the provinces may be enhanced by the new provisions relating to the
appointment, structure and functioning of the Council, the Senate certainly had more
constitutional power in the national legislative process than the Council.
205 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) paras 331–2.
206 S 75(2) of the Constitution.
207 S 75(1) of the Constitution.
208 S 65(2) of the Constitution. How such mandates are obtained is regulated by the Mandating
Procedures of Provinces Act 52 of 2008.
209 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996) para 62.
See also Doctors for Life para 84.
210 Doctors for Life para 84.
211 Simeon, R and Murray, C (2001) Multi-sphere governance in South Africa: An interim
assessment Publius: The Journal of Federalism 31(4):65–92 at 78.
212 Simeon and Murray (2001) 78.
213 S 66(1) of the Constitution.
214 (CCT 41/07) [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June
2008).
215 See s 5 of Schedule 1 of the Mandating Procedures of Provinces Act.
216 Merafong para 50.
217 S 64(1) of the Constitution. While the Chairperson and one of the Deputy Chairpersons are
elected from the permanent delegates for a term of five years unless their terms as delegates
expire earlier (s 64(2)), the other Deputy Chairperson is elected for a term of one year and
‘must be succeeded by a delegate from another province, so that every province is represented
in turn’ (s 64(3)).
218 S 70(1) of the Constitution. This provision mirrors the provision applicable to the NA –
s 57(1).
219 S 70(2)(a) of the Constitution. S 57(2) contains identical provisions regarding the NA.
220 S 65(1) of the Constitution.
221 S 75(2) of the Constitution.
222 S 65(2) of the Constitution.
223 Act 52 of 2008.
224 S 65(1) of the Constitution.
225 Since the whole delegation has only one vote, all the delegates do not have to be present and no
quorum requirement is necessary.
226 S 75(2) of the Constitution.
227 S 70(2)(b).
228 S 70(2)(c) of the Constitution refers to s 75 Bills.
229 S 42(3) of the Constitution states that the NA is able to represent the people and ensure
democratic government by, among others, ‘providing a national forum for public consideration
of issues’. Similarly, under s 42(4), the NCOP does so by ‘providing a national forum for
public consideration of issues affecting the provinces’.
230 S 55(2)(a) read with s 92(2) of the Constitution.
231 S 55(2)(b) of the Constitution. The Constitution does not provide for similar powers for the
NCOP. However, s 92 states that members of Cabinet are accountable to Parliament, which
suggests that they are accountable to both Houses of Parliament.
232 S 42(3) read with ss 55(1) and 68 of the Constitution.
233 Currie and De Waal (2001) 159. See NA Rules 103–4 and NCOP Rules 83–5.
234 S 59(1)(b) of the Constitution for the NA and s 72(1)(b) for the NCOP. Business must be
conducted in an open manner and sittings must be held in public, but reasonable measures may
be taken to regulate public access, including access of the media, and to provide for the
searching of any person and where appropriate, the refusal of entry to, or the removal of, any
person.
235 S 59(2) of the Constitution for the NA and s 72(2) for the NCOP.
236 S 59(1)(a) of the Constitution for the NA and s 72(1)(a) for the NCOP.
237 NA Rules 58–72 determine the rules of debate.
238 NA Rule 94.
239 NA Rule 103(1).
240 NA Rule 104(1).
241 NCOP Rule 84(1) and (2).
242 S 92(2).
243 See Parliament of the Republic of South Africa (2009) Oversight and Accountability Model:
Asserting Parliament’s Oversight Role in Enhancing Democracy 2.2.1 available at
http://www.parliament.gov.za/content/Microsoft%20Word%20-%20OVAC%20Model%20-
%20edited%20Word%20version%20-
%20Replaced%20Diagrams,Chapter%20Upper%20case_27-Jan-09~1~1.pdf.
244 NA Rule 138 and NCOP Rule 103.
245 NA Rule 109 and NCOP Rules 240–4.
246 NA Rule 110 and NCOP Rules 240–4.
247 NA Rule 111 and NCOP Rules 240–4.
248 See Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC);
2013 (11) BCLR 1297 (CC) (27 August 2013).
249 (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)
(27 August 2013).
250 NA Rules 187–90.
251 Mazibuko para 10.
252 Mazibuko para 43.
253 Mazibuko para 44.
254 Mazibuko para 44.
255 Mazibuko para 44.
256 Mazibuko para 47.
257 Mazibuko para 57.
258 S 57(1)(a) of the Constitution.
259 Mazibuko para 66.
260 Mazibuko para 66.
261 S 102(2) of the Constitution.
262 See Currie and De Waal (2001) 160.
263 Kotzé, H (1997) Take Us To Our Leaders: The South African National Assembly and Its
Members 18. See also Nijzink and Murray (2002) 91 where the authors argue that despite the
important oversight functions of committees, we should not lose sight of the fact that the role
of committees has often been at the expense of plenary sessions where committee reports could
be more publicly aired and debated, the implementation of policy showcased and scrutinised,
and question time be given more of a profile.
264 Nash, A ‘Post-apartheid accountability: The transformation of a political idea’ in Chirwa, DM
and Nijzink, L (2012) Accountable Government in Africa: Perspectives from Public Law and
Political Studies 21.
265 Nash (2012) 18–20.
266 Nash (2012) 24.
267 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
268 S 55(2)(b) of the Constitution.
269 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
270 S 239 of the Constitution.
271 Parliament of South Africa ‘Oversight and Accountability Model’ 2.1.
272 Kotzé (1997) 18.
273 Ss 100(1)(b) and 139(1)(b) of the Constitution respectively read with NCOP Rules 243–4.
274 S 216(3)(b) of the Constitution.
275 S 203 of the Constitution.
276 S 125(4) of the Constitution.
277 Taljaard, R (2012, 20 March) The day my idealism was extinguished The Star available at
http://www.iol.co.za/the-star/the-day-my-idealism-was-extinguished-
1.1260059#.UGxEGjkWHzI.
278 Doctors for Life para 81.
279 Doctors for Life para 82.
280 S 44(1)(a)(ii) and 44(1)(b)(ii) of the Constitution. As we shall see, in certain very limited
circumstances set out in s 44(2), Parliament may even legislate on those powers exclusively
allocated to provincial legislatures.
281 The question of how to deal with conflicts between provincial and national legislation will be
dealt with more fully in ch 5. On conflicts, see generally Bronstein, V ‘Conflicts’ in Woolman
and Bishop (2013) 16.1–16.31.
282 S 44(1)(a)(i) and 44(1)(b)(i).
283 S 44(1)(a)(iii).
284 S 55(2) read with s 73(2) of the Constitution.
285 Until the Constitutional Court handed down judgment in Oriani-Ambrosini, MP v Sisulu, MP
Speaker of the National Assembly (CCT 16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013
(1) BCLR 14 (CC) (9 October 2012), the private members’ Bills were regulated by the NA
Rules 209–13 and 234–7.
286 NA Rules 238–40.
287 NA Rule 230 states: ‘(1) The Assembly initiates legislation through its committees and
members acting with the permission of the Assembly in terms of these Rules. (2) Any
committee or member of the Assembly may in terms of section 73(2) of the Constitution
introduce a Bill in the Assembly that has been initiated in terms of Subrule (1).’
288 NA Rule 234.
289 NA Rule 235A.
290 (CCT 16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC) (9 October
2012).
291 Oriani-Ambrosini para 43. See also South African Transport and Allied Workers Union and
Another v Garvas and Others (CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC);
[2012] 10 BLLR 959 (CC); (2012) 33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13 June 2012)
para 61.
292 (CCT29/02) [2002] ZACC 28; 2003 (2) BCLR 128; 2003 (2) SA 413 (CC) (12 December
2002) paras 42–3. See Oriani-Ambrosini para 47.
293 Oriani-Ambrosini para 48.
294 Oriani-Ambrosini para 48.
295 Oriani-Ambrosini para 49.
296 Oriani-Ambrosini para 57.
297 Oriani-Ambrosini para 64.
298 Oriani-Ambrosini para 64.
299 See De Vos, P (2012, 10 October) One small step for Parliament, one giant leap for Ambrosini
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/once-small-step-
for-parliament-one-giant-leap-for-ambrosini/.
300 Barkan, J (2005) Emerging legislature or rubber stamp? The South African National Assembly
after ten years of democracy Working paper No 134, Centre for Social Science Research:
Democracy in Africa Research Unit, University of Cape Town at 9–11, available at
http://www.cssr.uct.ac.za/sites/cssr.uct.ac.za/files/pubs/wp134.pdf. A version of this paper has
now been published in Barkan, JD (ed) (2009) Legislative Power in Emerging African
Democracies.
301 Barkan (2005) 6.
302 Barkan (2005) 6.
303 Barkan (2005) 7. It is unclear whether this assertion is still correct. After the ousting of
President Thabo Mbeki, power shifted from the Presidency back to the ANC leadership
collective as represented by the Secretary General of the party.
304 Barkan (2005) 10.
305 Barkan (2005) 11.
306 Barkan (2005) 13. Barken notes that Bills may be referred back to the committee for further
amendment before a formal vote, including the amendments desired by the Minister. See also
Doctors for Life para 40 where Ngcobo J pointed out that the first stage, the deliberative stage,
takes place when Parliament is deliberating on a Bill before passing it; the second stage, the
Presidential stage, occurs after the Bill has been passed by Parliament but while it is under
consideration by the President; and the third stage is the period after the President has signed
the Bill into law but before the enacted law comes into force.
307 S 79(1) of the Constitution. See also remarks by O’Regan J in Executive Council of the
Western Cape Legislature and Others v President of the Republic of South Africa and Others
(CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
para 7.
308 S 74.
309 S 75.
310 S 76.
311 S 77.
312 (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May
2010) para 45.
313 Joint Rules of Parliament (6th edition) (2011) Rule 151.
314 Joint Rule 151.
315 Tongoane para 45.
316 Tongoane para 58.
317 Tongoane para 58. See also Ex Parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1)
BCLR 1 (11 November 1999) paras 63–4; Western Cape Provincial Government and Others In
Re: DVB Behuising (Pty) Limited v North West Provincial Government and Another
(CCT22/99) [2000] ZACC 2; 2000 (4) BCLR 347; 2001 (1) SA 500 (2 March 2000) para 36;
In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995, In re: Payment
of Salaries. Allowances and Other Privileges to the Ingonyama Bill of 1995 (CCT1/96,
CCT6/96) [1996] ZACC 15; 1996 (7) BCLR 903; 1996 (4) SA 653 (5 July 1996) para 19.
318 Tongoane 59–60.
319 S 40(1).
320 Tongoane para 67, quoting from s 41(1)(e) and 41(1)(h)(iv) of the Constitution.
321 S 74(1) of the Constitution.
322 S 74(2) of the Constitution.
323 S 74(3) of the Constitution.
324 S 74(8) of the Constitution.
325 Ss 73(1) and 75(1) of the Constitution.
326 S 75(1) of the Constitution.
327 See s 75(1)(a)–(d) of the Constitution.
328 S 76(3) of the Constitution. These sections are ss 65(2), 163, 182, 195(3) and (4), 196 and 197.
329 S 76(4) of the Constitution.
330 S 76(5) of the Constitution.
331 Tongoane para 56 et seq.
332 S 76(1) and (2) of the Constitution.
333 S 78(1) of the Constitution.
334 S 78(2) of the Constitution.
335 S 76(1)(d) and 76(2)(d) of the Constitution.
336 S 76(1)(e) and 76(2)(e) of the Constitution.
337 S 77(1) read with s 214 of the Constitution.
338 S 77(3).
339 Act 9 of 2009.
340 Liquor Bill para 12.
341 S 237 of the Constitution.
342 Liquor Bill para 13.
343 (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November 1999).
344 Liquor Bill para 11.
345 Liquor Bill paras 14 to 20.
346 See O’Regan J in Executive Council of the Western Cape Legislature para 151.
347 S 80(1) of the Constitution.
348 S 80(2) of the Constitution.
349 S 80(3) of the Constitution.
350 Annual Report of Parliament 1999 and 2000, available at
http://www.pmg.org.za/minutes/20011018-sita-annual-report-19992000-briefing.
351 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
para 51.
352 Executive Council of the Western Cape Legislature para 51. See also AAA Investments
(Proprietary) Limited v Micro Finance Regulatory Council and Another (CCT51/05) [2006]
ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006) paras 49, 93 and
122–3; Constitutionality of the Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC
10; 2002 (1) SA 447 (CC); 2001 (11) BCLR 1126 (5 October 2001) para 19; Executive Council
of the Province of the Western Cape v Minister for Provincial Affairs and Constitutional
Development and Another, Executive Council of KwaZulu-Natal v President of the Republic of
South Africa and Others (CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12)
BCLR 1360 (15 October 1999) paras 123–4.
353 Executive Council of the Western Cape Legislature para 51.
354 (CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12) BCLR 1360
(15 October 1999) para 125.
355 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011) para 61.
356 Executive Council of the Western Cape Legislature para 51. See also Justice Alliance para 51.
357 Justice Alliance para 55.
358 Justice Alliance para 55.
359 See Executive Council of the Western Cape Legislature para 43.
360 See Hoexter, C (2007) Administrative Law in South Africa 50.
361 Act 209 of 1993.
362 Executive Council of the Western Cape Legislature para 51.
363 Executive Council of the Western Cape Legislature paras 106–13.
364 This basic principle was confirmed in a separate judgment in the same case by Mahommed DP
(Executive Council of the Western Cape Legislature para 136), but for slightly different – more
substantive – reasons. Mahommed said these things cannot be determined in the abstract but
depend, inter alia, on ‘the constitutional instrument in question, the powers of the legislature in
terms of that instrument, the nature and ambit of the purported delegation, the subject-matter to
which it relates, the degree of delegation, the control and supervision retained or exercisable by
the delegator over the delegatee, the circumstances prevailing at the time when the delegation
is made and when it is expected to be exercised, the identity of the delegatee and practical
necessities generally’.
365 Act 47 of 2001.
366 Justice Alliance para 55.
367 Justice Alliance para 56.
368 Justice Alliance para 77.
369 S 211(1).
370 S 212(2)(a).
371 Act 22 of 2009.
372 S 2 of the NHTLA.
373 S 3(1) and 3(2) of the NHTLA.
374 S 3(4) of the NHTLA.
375 S 1(d) of the Constitution.
376 Act 41 of 2003.
377 S 18(1)(a) of the TLGFA.
378 S 18(2) of the TLGFA read with s 12(2)(a) of the NHTLA.
379 S 11(2)(b) of the NHTLA.
380 S 11(2)(e) of the NHTLA.
381 S 11(1)(a) of the NHTLA.
Separation of powers and the
national executive

5.1 Introduction
5.2 The President
5.2.1 Election and term of office
5.2.2 The President as Head of State and as head of the
executive
5.2.3 The limits on the exercise of presidential power
5.3 The Deputy President and the rest of the Cabinet
5.3.1 Appointment and removal
5.3.2 Powers of the Deputy President and the Cabinet
Summary

5.1 Introduction
Figure 5.1 Separation of powers and the national executive
While Parliament is responsible for passing legislation and overseeing the
exercise of national executive authority, the national executive is
responsible for the day-to-day running of the country. The national
executive consists of the President, the Deputy President and the members
of the Cabinet. Parliament is made up of members of every political party
which received enough votes in a general election to win at least one seat in
the National Assembly (NA). The national executive, however, is usually
made up only of the members – usually the leaders – of the majority party
in the NA (or where no party has obtained a majority, the members of a
coalition of parties).
It is important to distinguish between the executive, the public
administration, public service and the state. When we refer to the executive,
we mean the members who form the government of the day. A government
is formed by the majority party (or parties who form a majority coalition 1)
in the NA for the limited duration of the life of the NA. This means
governments come and go while the public administration, public service
and the state – with all its permanent employees – stay the same even when
the governing party loses an election and is replaced by another party. As
the electoral fortunes of political parties wax and wane, they may find
themselves either in government or in opposition. Although one political
party can remain in government for many years because it remains popular
and keeps winning elections, as has been the case with the ANC in
democratic South Africa, that political party and the government it leads
should not be conflated or confused with the public administration, public
service and the state.
The public administration consists of the officials who do the core of
the government’s work and who implement the political decisions taken by
the members of the executive.2 These include all the employees of
government departments, as well as the employees of other organs of state.
A slightly narrower group is the members of the public service who are
those persons who work for the national and provincial government
departments.3
The government or the executive must also be distinguished from the
state. The state is usually viewed as an organised political community
occupying a certain territory and whose members live under the authority of
a constitution. The state is therefore a far broader concept than the
government: it does not change except in the case of a revolution in which
the state itself is overthrown and replaced with a new constitutional order or
other set of governing rules, or in which the state is recreated within new
geographical boundaries, or both. Even when the governing party is
defeated at an election and a new government is formed, the state remains
the same.
In this chapter we discuss the executive authority at the national level.
The executive authority is also exercised at provincial and local levels of
government. At provincial level these structures largely mirror those at the
national level: provincial executives consist of the Premier and the
Members of the Executive Council (MECs). In chapter 8 we will refer to
these institutions with reference to the relationship between the three
spheres of government. It is, however, important to note that the discussion
in this chapter focuses on the executive at the national level only.
The discussion in this chapter occurs against the larger canvas of the
separation of powers doctrine and the system of checks and balances in
this doctrine. When discussing the appointment and possible dismissal of
the President, it must be understood as a mechanism to give effect to the
system of checks and balances in the separation of powers system. The
discussion of the exercise of powers by members of the national executive
must also be considered with reference to the powers of the NA (discussed
in chapter 4) to hold the members of the national executive accountable. It
is therefore impossible to study the appointment, powers and the limits
placed on the exercise of powers by members of the national executive
without having regard to the powers and functions of Parliament. Neither is
it possible to understand the way in which the executive’s exercise of power
is constrained without having regard to the role of the judiciary (discussed
in chapter 6).

5.2 The President

5.2.1 Election and term of office

Unlike the previous 1983 tricameral Constitution, the 1996 Constitution
does not provide for the election of a State President – it refers simply to
the election of a President. The NA elects the President as both the Head of
State and as the head of the national executive from among the members of
the NA at its first sitting after a national general election or whenever a
vacancy occurs in the office of the President.4 The President, in turn,
appoints the members of the Cabinet who will govern the country for the
electoral term of the NA – usually five years. The election of the President
must be held at a time and on a date determined by the Chief Justice, but
not more than 30 days after a vacancy in the office of the President occurs.5
After his or her election, the President ceases to be a member of the NA.
Within five days, the newly elected President must assume office by
swearing or affirming faithfulness to the Republic and obedience to the
Constitution in accordance with the oath of office contained in Schedule 2
of the Constitution.6
The President may not serve more than two full terms in office which
will normally be 10 years. However, if the President is elected to fill a
vacancy which has occurred between elections, the period he or she serves
until the next election will not count as part of one of the two terms.7 This
means that a President who takes over the presidency halfway through the
term of the NA, and then serves out that half term plus two full terms, could
serve more than 10 years as President.
In light of the points set out above, it is clear that the President is not
directly elected by the voters, but is indirectly elected by the members of
the NA. Usually, the leader of the majority party in the NA, who was
elected by representatives of the members of that political party at its
national elective congress or conference, will be elected as President.8 It
follows, therefore, that the President is, in effect, elected by the delegates
who are selected to attend the elective conference of the political party that
wins the next general election and not directly by the voters. However,
voters indirectly confirm the majority party’s choice of leader, and therefore
as President, by voting for that party in the general election that follows on
the election of the party leader.
On paper, the NA – the directly elected body – is more powerful than the
President or his or her Cabinet as the NA has the power not only to elect the
President, but also to remove him or her from office. In practice, the
President and the other members of the executive remain the more powerful
arm of government until such time as he or she loses the support of the
majority party in the NA. This is because as long as the President enjoys the
support of the members of the majority political party of which the
President would usually be the leader, his or her position as party leader
will provide him or her with enormous influence over ordinary members of
the party in the NA.
The NA can remove the President from office in one of two ways. First,
in terms of section 89(1) of the Constitution, the NA can remove the
President from office if it adopts a resolution to that effect with a supporting
vote of at least a two-thirds majority if they find that one of the specified
grounds for the removal of the President exists. These grounds are a serious
violation of the Constitution or the law, serious misconduct or inability to
perform the functions of office.9 These are objective grounds and the NA
can only remove the President in this manner on the basis of a finding that
one or more of these grounds is present.
The NA cannot remove the President from office in terms of section 89
merely because he or she has lost the support of the majority party in the
NA. The power conferred on the NA does not provide a wide political
discretion to members of the NA, but confers a power on its members
related to safeguarding the nation against the abuse of power by the
President. Removing the President in this manner, which is also called the
impeachment of the President, has potentially serious consequences.
Anyone who has been removed from the office of President because of a
serious violation of the Constitution or the law, or for serious misconduct, is
prohibited from receiving any benefits of that office, including a pension,
and may not serve in any public office again.10 A President who resigns,
who retires after serving two full terms or whose party loses an election and
is not re-elected as President is entitled to these benefits.
Second, the President can also be removed from office for purely
political reasons in terms of section 102(2) of the Constitution, but only if
the NA, by a vote supported by a simple majority of its members, passes a
motion of no confidence in the President. Section 102 reflects the
essentially parliamentary nature of our system of government as it signals
that the President and his or her Cabinet are required at all times to retain
the support of the majority of members of the NA.11
Where one political party has obtained more than 50% of the votes in the
NA, this will in effect mean that the President is at all times required to
retain the support of his or her party both inside and outside the NA. If the
President loses the support of his or her party, a vote of no confidence can
be instituted against the President after which he or she will have to resign.
Following the Constitutional Court’s judgment in Mazibuko v Sisulu and
Another,12 any member of the NA can now propose a motion of no
confidence in the President and have it debated in the NA. It is, however,
highly unlikely that such a motion will be passed unless the President has
lost the support of his or her party.
South Africa has a closed list proportional representation electoral
system in which political party leaders have influence over who represents
the party in the NA. The practical effect of this system is that the President
must retain the support of the majority party leadership to ensure that he or
she is not ‘recalled’ by that leadership. If members of the majority party in
the NA are instructed by the party leadership to support a vote of no
confidence in the President, they would probably agree to do so as their
failure to obey such an instruction may well lead to their removal from the
NA and their replacement with members who will obey such an order. This
is because the Constitution provides that a member of the NA ceases to be a
member if he or she ‘ceases to be a member the party that nominated that
person as member of the Assembly’.13 This means if a member of the NA
refuses to follow instructions from party leaders to support a vote of no
confidence in the President, he or she can be removed from the party for ill-
discipline and replaced with a more docile member.

CRITICAL THINKING

The legality of the decision by the ANC NEC to

‘recall’ former President Mbeki from office
In his book, Eight Days in September: The Removal of
Thabo Mbeki,14 the Reverend Frank Chikane writes about
the dramatic removal of then President Thabo Mbeki from
office by the National Executive Committee (NEC) of the
ANC. Members of the NEC were elected at Polokwane at
the end of 2007 after a bitter struggle between Mbeki and
his supporters and President Jacob Zuma and his
supporters. Chikane writes as follows:
It was after midnight of Friday, 19 September 2008 – to be precise,
just before 1.00 a.m. on Saturday – when the first text messages
began to come through: ‘the NEC has decided to recall Mbeki as
president of the country’. Another said that ANC officials had been
appointed to visit Mbeki immediately, that night, to inform him of
the NEC decision. Other text messages kept coming from NEC
members in Esselen Park celebrating that they had won and that
Mbeki was to be removed or else expressing concern over the
consequences of the NEC decision …

Calls also began to come through from Mbeki’s advisers asking

what they should do. Advocate Mojanku Gumbi, the president’s
legal adviser, was among the first to call and we discussed what
the presidency needed to do. Her second call concerned a message
from the staff at Mahlamba Ndlopfu, saying that they had been
asked to wake the president as a delegation from the ANC was
coming to inform him about the NEC decision. Presumably the
 thinking was – as a matter of courtesy – that he should learn about
the decision from the party, not from the media or third parties, but
we believed he should not be woken. Advocate Gumbi and I would
be at Mahlamba Ndlopfu early in the morning to inform him about
the impending visit. We instructed the staff accordingly and made
arrangements with the ANC to send their delegation at about 9.00
a.m., by which time we thought the president would be ready to
start his day. Advocate Gumbi and I agreed that she (together with
the legal unit in the presidency) would review all the legal issues
related to the decision and advise how the government would
handle the matter – a procedure dependent on the nature of the
decision, which we would only hear officially from the delegation
later that morning.

Questions are asked (but not answered) in the book about

the legality of the decision by the ANC NEC to ‘recall’
former President Mbeki from office and whether Mbeki was
legally required to obey the ‘recall’ by the NEC.
Constitutionally, former President Mbeki had no legal duty
to obey the decision of the NEC to ‘recall’ him. He could
have refused in the hope of garnering support from among
the ANC members serving in the NA. However, if he had
refused to heed the instruction by the NEC, serious
consequences might have ensued. First, his refusal may
have led to disciplinary charges being brought against him
and he may eventually have been expelled from the ANC.
Second, the ANC members of the NA would have been
instructed to rely on section 102 of the Constitution to pass
a vote of no confidence in Mbeki after which he would have
had to resign. In these circumstances, the President had
little choice but to resign, which he did in due course after
addressing the nation.
This dramatic event in South Africa’s history alerts us to
the sometimes complex relationship between political
parties (especially the governing party) and the elected
officials in the legislature and the executive. Although the
President and the members of the NA are constitutionally
required to act in accordance with the Constitution, strict
party discipline also requires them to obey the instructions
 of the political party to which they belong. In this context,
the absence of more detailed provisions in the Constitution
or legislation regulating the relationship between political
parties and elected officials may be viewed as a weakness
in our constitutional system.

Because the President fulfils a vital role in running the country as the Head
of State and head of the executive, it is important that there should never be
a vacancy in this position. Another office-bearer will act as President when:
• the President is absent from the Republic
• when the President is otherwise unable to fulfil the duties of President,
for example due to illness
• there is a vacancy in the office of President that arises when the
President resigns or dies while in office, a motion of no confidence is
passed in the President or the President is removed from office.
The Deputy President will ordinarily fill this temporary vacancy but if he or
she is unavailable, the following office-bearers will act as President in the
following order:
• a Minister designated by the President, but if the President has not
designated such a person
• a Minister designated by the other members of the Cabinet, but if the
Cabinet has not designated such a person
• the Speaker of the NA until the NA designates one of its other members
as acting President.15
This means that if the President falls ill, passes away or resigns, the Deputy
President will usually act as President until a new President is elected or
until the President can resume his or her duties. However, if the Deputy
President is also unavailable because he or she has resigned or has also
passed away, somebody else, in the order listed above, will be appointed as
acting President to ensure that there is no power vacuum at the top of the
executive.
An Acting President has all the responsibilities, powers and functions of
the President.16 Before assuming the responsibilities, powers and functions
of the President, the Acting President must swear or affirm faithfulness to
the Republic and obedience to the Constitution in accordance with the oath
of office contained in Schedule 2 of the Constitution.17 A person who as
Acting President has sworn or affirmed faithfulness to the Republic need
not repeat the swearing or affirming procedure for any subsequent term as
Acting President during the period ending when the person next elected
President assumes office.18

5.2.2 The President as Head of State and as head of the

executive
The President is vested with powers that are conferred on him or her by the
Constitution in his or her capacity as the Head of State as well as the head
of the national executive.19 The legal significance of this distinction is that
as Head of State the President exercises his or her authority alone and
usually need not consult the other members of the Cabinet.20 When the
President exercises head of the executive powers, he or she acts in
consultation with his or her Cabinet.21
When the President acts as Head of State, he or she cannot ‘abdicate’ the
exercise of such a power 22 by:
• unlawfully delegating that power conferred on him or her as Head of
State 23
• acting ‘under dictation’ by merely following the instructions of another
without applying his or her mind to the matter at hand 24
• ‘passing the buck’ by referring the decision to somebody else.25
This does not mean that when contemplating the exercise of this kind of
Head of State power, the President should not (or does not have the right to)
consult with and take the advice of Ministers and advisers as long as he or
she takes the final decision.26 The Constitutional Court can check on
whether the Head of State powers are exercised in accordance with the
Constitution and can confirm that such an exercise of power does not
infringe on the Bill of Rights or breach the principle of legality. We deal
with this check on the exercise of power by the President in more detail in
the following section.
The Head of State powers are usually distinguished from the head of the
executive powers by focusing on whether the President is required to
exercise a political discretion on behalf of the government, in which case
the President acts as the head of the executive, or whether the President is
exercising a power as the Head of State, which implies an absence of a clear
exercise of a political discretion. As Head of State, the President is
representative of all the people, not only of the government formed by the
majority party.27 However, as Currie and De Waal point out, this distinction
is difficult to uphold.28
A better distinction can be drawn between the exercise of the Head of
State power and the head of the executive power by focusing on the
historical emergence of the South African office of the President. For a
large part of the twentieth century during most of the apartheid era, a prime
minister headed the South African executive. At first, a Governor General
and then, after 1961 when South Africa became a Republic, a State
President fulfilled the more ceremonial role of Head of State. This mirrored
the roles in the United Kingdom (UK) of the Prime Minister and the Queen.
In this system, the Head of State (the Queen in the UK, the State President
in South Africa) formally exercised the Head of State power but usually on
the advice of his or her Prime Minister. Since 1983, the two positions have
been joined in South Africa in the position of an executive State President,
renamed President in 1994 with the advent of democracy. The former
uncodified prerogative powers of the President, derived from the British
system, were extinguished and were codified in section 84(2) of the
Constitution.29 In this system, the President therefore fulfils the duties of
both the head of the executive, which are similar to the role of the Prime
Minister in the UK, and the duties of the more ceremonial role of Head of
State which is similar to the role of the Queen in the UK.
The Constitution provides some clarity on the distinction between Head
of State and head of the executive powers by listing these powers in two
separate sections. Section 84(2) of the Constitution lists the Head of State
powers exercised by the President alone and states that the President
exercises Head of State powers when he or she:
• assents to and signs Bills
• refers a Bill back to the NA for reconsideration of the Bill’s
constitutionality
• refers a Bill to the Constitutional Court for a decision on the Bill’s
constitutionality
• summons the NA, the NCOP or Parliament to an extraordinary sitting to
conduct special business
• makes any appointments that the Constitution or legislation requires the
President to make, other than as head of the national executive
• appoints commissions of enquiry
• calls a national referendum in terms of an Act of Parliament
• receives and recognises foreign diplomatic and consular representatives
• appoints ambassadors, plenipotentiaries, and diplomatic and consular
representatives
• pardons or reprieves offenders and remits any fines, penalties or
forfeitures
• confers honours.
The President thus has the power to assent to Bills or to refer Bills back to
Parliament because he or she ‘has reservations about the constitutionality of
a Bill’.30 Unlike the President of the United States of America, the
President of South Africa does not have the power to veto legislation
merely because he or she opposes the legislation. However, section 79(1) of
the Constitution places a duty on the President to refer a Bill back to the NA
for reconsideration if the President has reservations about the
constitutionality of specific sections of the Bill. In terms of section 79(4),
the President must assent to and sign the Bill if, after reconsideration by the
NA, a Bill fully accommodates the President’s reservations. If it does not,
the President must either assent to and sign the Bill or refer it to the
Constitutional Court for a decision on its constitutionality. The Joint Rules
of Parliament state that when the President refers a Bill back to the NA, the
committee tasked with considering the President’s constitutional objections
‘must confine itself to the President’s reservations’.31 This means
Parliament cannot reconsider the Bill in its entirety, but can only reconsider
those sections identified by the President as being constitutionally
problematic.32
Section 85(1) of the Constitution states that the executive authority of the
Republic is vested in the President while section 85(2) confirms that the
President exercises the executive authority together with the other members
of the Cabinet. The President has the sole authority to appoint the Deputy
President, Cabinet Ministers and Deputy Ministers and also has the power
to dismiss the Deputy President, Cabinet Ministers and Deputy Ministers.33
The President also has the sole authority to appoint the leader of
government business in the NA from among the members of the NA.34 The
President exercises executive authority, together with the other members of
the Cabinet, by:
• implementing national legislation except where the Constitution or an
Act of Parliament provides otherwise
• developing and implementing national policy
• co-ordinating the functions of state departments and administrations
• preparing and initiating legislation
• performing any other executive function provided for in the Constitution
or in national legislation, which includes the appointment of the National
Director of Public Prosecutions,35 the Military Command of the
National Defence Force,36 the National Commissioner of Police Service
37 and the heads of the intelligence services.38

CRITICAL THINKING

How the formal power of the President to

appoint and dismiss is constrained by internal
party political considerations
Although the President has the constitutional authority to
appoint and dismiss the Deputy President and other
members of the Cabinet, in practical terms this power is
indirectly limited although not by any provision of the
Constitution itself. As we have argued above, a close
relationship exists in the South African system between
political parties on the one hand and the members of the
legislature and the executive on the other. The reason for
this is that members of the legislature are elected via their
respective political parties and political parties insist that
elected leaders adhere strictly to party discipline.
This means that when the President considers the
appointment or dismissal of the Deputy President, Cabinet
Ministers and Deputy Ministers, he or she will usually
informally consult the leadership of the governing party
before making an appointment or before dismissing a
member of the Cabinet. This is despite the fact that
constitutionally, the power to make these appointments is
that of the President alone. When a President appoints or
dismisses a Cabinet member, he or she needs to ensure
support from his or her political party to retain the
confidence of the political party of which he or she is the
leader. The formal power to make these appointments may
therefore be informally constrained by the demands of
intraparty politics.
In June 2005, former President Thabo Mbeki ‘relieved’
then Deputy President Jacob Zuma from his position as
Deputy President of the country after Zuma’s financial
adviser was convicted of soliciting a bribe on behalf of the
then Deputy President. Mbeki stated that he had ‘come to
the conclusion that the circumstances dictate that in the
interest of the Honourable Deputy President, the
Government, our young democratic system, and our
country, it would be best to release the Hon Jacob Zuma
from his responsibilities as Deputy President of the
Republic and Member of the Cabinet’.39 This decision
formed part of a series of events which culminated in the
defeat of President Mbeki by Jacob Zuma as leader of the
ANC at the ANC elective conference at Polokwane in
 December 2007. Some commentators – rightly or wrongly
– have argued that the dismissal of the Deputy President
by Mbeki, while constitutionally authorised and even
admirable, contributed to the intensity of the leadership
struggle between the two men and assisted Zuma in his
efforts to build support inside the ANC in the run-up to the
ANC conference. This illustrates the manner in which the
formal power of the President to appoint and dismiss is
constrained by internal party political considerations.40

The role, powers and administrative functions of the South African

President have increased since 1994. When Nelson Mandela became
President, the office of the President had been scaled down. Given the
mammoth task facing the executive of transforming the country, it was
important to enhance the capacity of the Presidency. To address this issue,
Mr Mandela appointed a Commission of Enquiry Regarding the
Transformation and Reform of the Public Service. This Presidential Review
Commission aimed to assist with the transformation of the state and its
principal executive arm to enable it to consolidate democracy and to ensure
accountability, transparency and openness.41 The Report argued that a
radical reappraisal of the functions, structures, personnel and management
of the Office of the President was required to ensure greater direction and
co-ordination of government policy at all levels.42
Although not all the recommendations of the Review Commission were
implemented, it did lead to a bolstering of the administrative capacity of the
Office of the President and a greater centralisation of power in this Office.
This tendency continued during the term of President Thabo Mbeki with
some of his critics questioning what they called the ‘excessive
concentration of power’ in the Office of the President.43
Another way of viewing this increased power of the Office of the
President is to focus on the manner in which the executive has implemented
the 1996 Constitution’s provisions regarding the President and the national
executive. This view argues that it gives effect to the structure intended by
the drafters of the Constitution.44 An alternative viewpoint with regard to
the increased power of the Office of the President is to argue that the
increased power of the Office of the President reflects the balance of
political forces between the three branches of government. The power of
the Office of the President has further increased under President Jacob
Zuma who created two additional Ministries in his office – that of the
National Planning Commission and that of the Minister of Performance and
Evaluation.45

CRITICAL THINKING

Has the power of the Office of the President in

fact increased during President Zuma’s tenure?
In his book, The Zuma Years: South Africa’s Changing
Face of Power, Calland argues that compared to President
Thabo Mbeki, President Jacob Zuma’s Presidency is in
some ways less influential and powerful. The reason for
this is because of President Zuma’s relatively lesser
political standing and influence, and perhaps because of a
deliberate move to water down the power of the President
in relation to the governing party. Calland argues that to
prevent a repeat of the ‘imperial Mbeki presidency’ in which
the President was able to ‘overcome’ his Ministers through
the sheer force of his organisational capacity, the ‘kitchen
cabinet’ of influential advisers and Ministers has been
smashed as part of the post-Polokwane reorganisation of
government and the reassertion of the governing party
over government. Calland states that:
The paradox of the Zuma years is this: the Presidency is less
powerful because of who he is, but the Presidency is perhaps more
so, because of structural changes. However, since so much of the
Presidency’s political and institutional heft is drawn directly from
the president himself, his individual weaknesses, of which there are
 many, are exaggerated by the absence of a strong team around
him. Zuma is afforded little protection from himself.46

However, other commentators like Friedman have pointed

out that President Zuma’s Presidency must be viewed
against the background of the increasing influence of
Cabinet Ministers in the security cluster. Friedman claims
President Zuma has staffed the security cluster with trusted
allies which has led to an increased ‘desire to operate in
the dark’.47

The national Parliament is relatively weak due to the effects of the electoral
system and strict party discipline. In addition, the President has so far
always been the leader of the dominant party in Parliament. Given these
facts, it was inevitable that the powers of the President and the executive
would increase as they are mandated to give effect to the policies and
programmes of the political party elected by the vast majority of South
Africans to lead the country. However, given these practical political
realities, it is important to focus on the constitutionally imposed limits of
the powers of the President and his or her executive. 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.

5.2.3 The limits on the exercise of presidential power

As pointed out above, the President act as both Head of State and as head of
the national executive and is granted wide powers to fulfil his or her duties
in this regard. However, apart from the political constraints under which a
President must exercise these powers, the powers of the President are also
limited in other ways. It is important to establish the formal limits explicitly
placed on the exercise of power by the President as well as the substantive
limits placed on the exercise of power by the President. This is because of
the requirement that the President must act in accordance with the
provisions in the Bill of Rights and according to the principle of legality.
Several constitutional provisions place formal limits on the manner in
which the President must exercise some of the Head of State and head of
executive powers. For example, when appointing ordinary judges of the
High Court, the President has no discretion and must appoint the candidates
recommended to him or her by the Judicial Service Commission (JSC).48
Similarly, when appointing the Public Protector, the Auditor-General and
the members of the Human Rights Commission, the Commission for
Gender Equality and the Electoral Commission, the President acts ‘on the
recommendation of the NA’.49 The President therefore does not exercise an
independent discretion but merely formally appoints the candidates selected
by the NA. When appointing the head of the National Prosecuting
Authority (NPA) in terms of section 179(1)(a) of the Constitution, read with
section 9 of the National Prosecuting Authority Act,50 the President can
appoint only a fit and proper South African citizen with due regard for his
or her experience, conscientiousness and integrity. Moreover, when
appointing the Chief Justice and Deputy Chief Justice the President must
first consult with the JSC and the leaders of opposition parties in the NA.51
He or she must also consult the JSC before appointing the President and
Deputy President of the Supreme Court of Appeal (SCA).52 Failure to
adhere to these requirements would render the appointments unlawful.53
In addition, a decision by the President must be in writing if it is taken in
terms of legislation or has legal consequences.54 Another Cabinet member
must countersign a written decision by the President if that decision
concerns a function assigned to that other Cabinet member.55 For example,
the decision by the President to appoint ambassadors would have to be
countersigned by the Minister of International Relations.56
The Constitution also places more 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. This conclusion necessarily flows from the fact that the
Constitution is supreme 57 and that the rule of law (and the doctrine of
legality that forms part of the rule of law) is a founding value of the
Constitution. This means the exercise of the powers by the President must
not infringe any provision of the Bill of Rights and, as is implicit in the
Constitution, the President must act in good faith and must not misconstrue
the powers.58 These constraints would have no force and effect if they
could not be enforced by the courts.
However, this invariably raises questions about the separation of powers
doctrine and to what extent judicial officers should intervene in decisions
taken by the President. On the one hand, the courts have to balance their
duty to enforce the provisions of the Constitution and the principle of
legality with, on the other hand, respect for the fact that the decisions of the
President and the executive often contain a political component with which
the courts should be slow to interfere. We contend that, as a general rule,
the more directly political the discretion is that the President (or other
members of the executive) exercises, the more hesitant the courts will be to
intervene.
As implied above, many of these constraints also apply to other members
of the executive exercising public power. This means the discussion below
must be seen in a broader context and many of the principles set out below
also apply to other members of the Cabinet or to provincial Premiers and
MECs. There are at least three ways in which the exercise of power by the
President and other members of the executive is constrained by the
Constitution.
The exercise of power by the President is constrained in that such an
exercise of power is, in principle, subject to the provisions contained in the
Bill of Rights.59 This means that when the President exercises any power,
he or she is constitutionally bound by the provisions of the Bill of Rights
and may not act (or cannot fail to act) in a manner that would impermissibly
infringe on one or more of the rights protected in the Constitution. Thus, in
President of the Republic of South Africa and Another v Hugo, the
Constitutional Court stated:
In respect of most of the [Head of State] powers … it is
not difficult to conceive of cases (extreme and unlikely as
they may be) where some provision of the Bill of Rights
 might be contravened, and especially the equality
provisions contained in section 8 [now section 9]. One or
another of the powers, for example, could be exercised in
a manner which excluded from consideration persons of
a particular religion or ethnic group … the fact that the
arbitrary exercise of the power to pardon may be a
rarity is no ground for denying constitutional review.60
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 by
the President, the provisions of the Bill of Rights would provide no ground
for an effective review of a presidential exercise of such a power.61
(However, the exercise of power by the President can always still be
reviewed under one of the other grounds explained below.) This does not
mean the Court would not have the power to review any exercise of power
by the President against the provisions of the Bill of Rights – it has the
power to do so in each and every case. However, such an exercise may
often not lead to an invalidation of the President’s action because the Court
could find that specific right cannot be effectively applied to test the
President’s exercise of power. For example, when the President exercises a
purely political discretion that affects only one individual, and where that
exercise of power is unconstrained by any constitutional or other legal
requirements, it may not be possible for the Court successfully to review
this exercise of power on the basis that it infringes on any of the rights
guaranteed in the Bill of Rights. Thus in the Hugo case, the Constitutional
Court argued that in cases where the President pardons or reprieves a single
prisoner in terms of section 84 of the Constitution, it is difficult to conceive
of a case where a constitutional attack could be mounted against such an
exercise of the presidential power on the basis that it infringed any of the
rights in the Bill of Rights.62
Another example would be cases where the President exercises his or her
power to appoint or dismiss the Deputy President and other members of the
Cabinet. The President is given a wide discretion to appoint the Deputy
President and the members of the Cabinet.63 He or she has to do so in a
manner that complies with the Constitution. However, when he or she
exercises this power, it would not often be possible to challenge the exercise
of power on the basis that it infringes any of the rights in the Bill of Rights.
The power to appoint Cabinet Ministers is a political discretion entrusted to
the President to give effect to the mandate of the political party in
government. It is thus difficult to see how a court would be able to invoke
the right to equality in the Bill of Rights if the President fails to appoint a
person to his or her Cabinet and that person is a women or if the President
dismisses a Cabinet Minister and that Cabinet Minister has revealed his
HIV positive status or that she is a lesbian. Such a move may be ethically
problematic and some voters would refuse to vote for the party to which the
President belongs if it is revealed that he or she harbours prejudices against
people living with HIV or who are gay or lesbian. While the exercise of this
power by the President may be tested on other grounds listed below, it is not
easy to see how a court would be able to declare the decision invalid on the
basis that it infringes the right not to be discriminated against.
In Masetlha v President of the Republic of South Africa and Another,64
the decision of the President to dismiss the head of the National Intelligence
Agency (NIA) was challenged. The basis of the challenge, among others,
was that it was unfair to do so because the President did not afford Mr
Masetlha an opportunity to be heard before the impending dismissal in
contravention of the common law administrative law right (now codified in
section 33 of the Bill of Rights). The Constitutional Court focused on the
nature of the power of the President to appoint and dismiss the head of the
NIA as set out in section 209(2) of the Constitution.65 The Court dismissed
the challenge, arguing that the dismissal constituted executive action rather
than administrative action, particularly in this special category of
appointments of members to the NIA. According to the Court, it would not
be appropriate to constrain the exercise of executive power in the context of
a dismissal of the head of the NIA by enforcing the constitutional
requirements for procedural fairness. These powers to appoint and to
dismiss are conferred specially on the President for the effective business of
government and, in this particular case, for the effective pursuit of national
security.66 The Court quoted from its judgment in Premier, Province of
Mpumalanga and Another v Executive Committee of the Association of
Governing Bodies of State Aided Schools: Eastern Transvaal 67 where it
cautioned that procedural fairness should not be made a requirement for the
exercise of every decision by the executive (despite the fact that section 33
contains a specific administrative justice clause). The Court stated that:
In determining what constitutes procedural fairness in a
given case, a court should be slow to impose obligations
upon government which will inhibit its ability to make
and implement policy effectively (a principle well
recognised in our common law and that of other
countries). As a young democracy facing immense
challenges of transformation, we cannot deny the
importance of the need to ensure the ability of the
Executive to act efficiently and promptly.68
Despite this warning, South African courts have consistently asserted the
principle that all decisions by the President are in principle reviewable, if
not on the basis that the decision contravenes the 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.69 The answer to the question of
whether the exercise of power by the President in a particular case could be
tested against the provisions of 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 exercises 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 conferred on the
President as part of his or her political duties 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.

PAUSE FOR REFLECTION

Limits placed by the Constitution on the exercise
of Head of State powers
In President of the Republic of South Africa and Others v
South African Rugby Football Union and Others (SARFU
III),70 the decision by the President as Head of State to
appoint a commission of enquiry to investigate the
administration of rugby in South Africa was challenged on
several grounds. One ground was that the President, when
exercising the power to appoint a commission of enquiry,
was obliged to afford those to be investigated with a
hearing before appointing the commission.
The Constitutional Court overturned a High Court
decision which had found that such a duty did indeed exist.
The Constitutional Court pointed out that although the
exercise of all public power is regulated by the
Constitution, it is done in different ways. The Court further
pointed out that the Head of State powers conferred by
section 84(2) are original constitutional powers that must
be distinguished from head of the executive powers. The
Constitution places explicit limits on the exercise of some
of these powers.
However, the remaining section 84(2) powers are
discretionary powers conferred on the President which are
not constrained in any express manner by the provisions of
the Constitution. Their scope is narrow: the conferral of
honours; the appointment of ambassadors; the reception
and recognition of foreign diplomatic representatives; the
calling of referenda; the appointment of commissions of
enquiry and the pardoning of offenders. They are closely
related to policy; none of them is concerned with the
implementation of legislation. Several of these decisions
result in little or no further action by the government, for
example the conferral of honours, the appointment of
ambassadors or the reception of foreign diplomats. When
exercising these powers, the requirements of
administrative law (enshrined in section 33 of the
Constitution) could therefore not be applied to these Head
of State powers. The Constitution therefore placed no
obligation on the President to afford a hearing to those
affected by the appointment of such a commission before
he or she made the decision to appoint the commission.
The Court then proceeded to remark as follows about the
limits placed on the exercise of these Head of State
powers by the President:
In the case of the appointment of commissions of inquiry, it is well-
established that the functions of a commission of inquiry are to
determine facts and to advise the President through the making of
recommendations. The President is bound neither to accept the
commission’s factual findings nor is he or she bound to follow its
recommendations. A commission of inquiry is an adjunct to the
policy formation responsibility of the President. It is a mechanism
whereby he or she can obtain information and advice. When the
President appointed the commission of inquiry into rugby he was
not implementing legislation; he was exercising an original
constitutional power vested in him alone. Neither the subject
matter, nor the exercise of that power was administrative in
character. The appointment of the commission did not, therefore,
constitute administrative action within the meaning of section 33.
… It does not follow, of course, that because the President’s
conduct in exercising the power conferred upon him by
section 84(2)(f) does not constitute administrative action, there are
no constraints upon it. The constraints upon the President when
exercising powers under section 84(2) are clear: the President is
required to exercise the powers personally and any such exercise
must be recorded in writing and signed; … the exercise of the
powers must not infringe any provision of the Bill of Rights; the
exercise of the powers is also clearly constrained by the principle
of legality and, as is implicit in the Constitution, the President must
act in good faith and must not misconstrue the powers.71

The SARFU III judgment therefore illustrates the fact that

although the Constitution places limits on the exercise of
the Head of State powers, these limits do not go as far as
requiring the President always to consult those affected by
a decision when he or she exercises this power or to
 adhere to the other requirements for just administrative
action. As we shall see in the next section, the
Constitutional Court later developed this point and added
an important qualification to this general statement that the
President was free to exercise the unqualified Head of
State powers without consulting those affected.72

The exercise of power by the President (and other members of the

executive) is further constrained by the requirement that such power must
be duly authorised by the Constitution or some other constitutionally valid
law. This means that whenever the President exercises his or her powers,
this power must be sourced from the Constitution or legislation or must
implicitly be derived from it. Put differently, the President cannot act
lawfully unless he or she is authorised to exercise a specific power by the
Constitution or by other valid law. The authority to act can be conferred
explicitly or implicitly.
In Masetlha one of the legal questions which arose was whether the
President was constitutionally authorised to dismiss the head of the NIA.
Section 209 of the Constitution authorises the President, as head of the
national executive, to ‘appoint a woman or a man as head of each
intelligence service’. However, the provision is silent on whether the
President has the authority also to dismiss the head of each intelligence
service. The Constitutional Court held that the power to dismiss in this case
is necessary in order to exercise the power to appoint:
Without the competence to dismiss, the President would
not be able to remove the head of the Agency without his
or her consent before the end of the term of office,
whatever the circumstances might be. That would indeed
lead to an absurdity and severely undermine the
constitutional pursuit of the security of this country and
its people. That is why the power to dismiss is an
essential corollary of the power to appoint and the power
 to dismiss must be read into section 209(2) of the
Constitution.73
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. For example,
Parliament cannot delegate its own plenary legislative power conferred on it
by the Constitution to another body or person, including the President. In
any given case, the question whether Parliament is entitled to delegate its
own powers to the President must depend on whether the Constitution
permits the delegation. This is so because the authority of Parliament to
make laws, and so too to delegate that function, is subject to the
Constitution. Thus, whether Parliament may delegate its law-making power
or regulatory authority is a matter of constitutional interpretation dependent,
in most part, on the language and context of the empowering constitutional
provision.74
In Executive Council of the Western Cape Legislature and Others v
President of the Republic of South Africa and Others, Chaskalson P stated
that our 1993 and 1996 Constitutions represent a clear break from the past
as the Constitution is now supreme and the Constitution provides law-
making powers for the legislature, not the executive.75 This does not mean
that the power to issue subordinate legislation cannot be delegated to the
executive. However, it does mean that usually the power of the legislature
to delegate the power to amend or repeal legislation would not be permitted.
This is because it would interfere with the ‘manner and form’ requirements
in the Constitution which describe how laws are to be made.76 Thus
Parliament cannot delegate to the President an unrestricted power to amend
legislation unless it is absolutely necessary, for example in a time of war or
another exceptional situation. This is important 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 separation of
powers.77
 As we have already noted in Chapter 4 of this book, in Justice Alliance
of South Africa v President of Republic of South Africa and Others,
Freedom Under Law v President of Republic of South Africa and Others,
Centre for Applied Legal Studies and Another v President of Republic of
South Africa and Others,78 the President purported to extend the term of
office of the then Chief Justice by relying on section 8(a) of the Judges’
Remuneration and Conditions of Employment Act.79 Section 8(a) granted
the President the power to extend the term of office of the Chief Justice and
reads as follows
A Chief Justice who becomes eligible for discharge from
active service in terms of section 3(1)(a) or 4(1) or (2),
may, at the request of the President, from the date on
which he or she becomes so eligible for discharge from
active service, continue to perform active service as Chief
Justice of South Africa for a period determined by the
President, which shall not extend beyond the date on
which such Chief Justice attains the age of 75 years.
However, section 176(1) of the Constitution states:
A Constitutional Court judge holds office for a non-
renewable term of 12 years, or until he or she attains the
age of 70, whichever occurs first, except where an Act of
Parliament extends the term of office of a Constitutional
Court judge.
The Constitutional Court found that the power to extend the term of office
is explicitly conferred on Parliament and not on the President. The Court
stated that section 176(1) contains clear textual indicators that the
Constitution does not empower Parliament to delegate the power to extend
the term of service of a judge of the Constitutional Court as was purportedly
done by section 8(a) of the Judges’ Remuneration and Condition of
Employment Act. The Court confirmed that where the doctrine of
parliamentary sovereignty governs, Parliament may delegate as much
power as it chooses. In a constitutional democracy, however, Parliament
may not ordinarily delegate its essential legislative functions. In this case,
the power to extend the term of a Constitutional Court judge goes to the
core of the tenure of the judicial office, judicial independence and the
separation of powers and was therefore deemed to be an essential legislative
function that could not be delegated. As the Court stated:
The term or extension of the office of the highest judicial
officer is a matter of great moment in our constitutional
democracy … . The 2001 amendment requires an Act of
Parliament to extend the term of office. It requires
Parliament itself to set the term of office. … Another
important consideration in deciding whether section 8(a)
is constitutionally compliant is the constitutional
imperative of judicial independence. This Court is the
highest court in all constitutional matters. The
independence of its judges is given vigorous protection
by means of detailed and specific provisions regulating
their appointment. The Chief Justice is at the pinnacle of
the judiciary and thus the protection of his or her
independence is just as important. It is so that
section 176(1) of the Constitution creates an exception to
the requirement that a term of a Constitutional Court
judge is fixed. That authority, however, vests in
Parliament and nowhere else. It is notable that
section 176(1) does not merely bestow a legislative power,
but by doing so also marks out Parliament’s significant
role in the separation of powers and protection of
judicial independence. The nature of this power cannot
be overlooked, and the Constitution’s delegation to
Parliament must be restrictively construed to realise that
protection. Accordingly, section 8(a) violates the
principle of judicial independence. This kind of open-
ended discretion may raise a reasonable apprehension or
perception that the independence of the Chief Justice
and by corollary the judiciary may be undermined by
external interference of the Executive. The truth may be
 different, but it matters not. What matters is that the
judiciary must be seen to be free from external
interference.80
One of the most important ways in which the exercise of power by the
President is controlled is through the requirement that when exercising any
duly authorised power, the President has to act rationally. This requirement
stems from the principle that when the President (or other members of the
executive) exercises power, he or she is constrained by the principle of
legality in the sense that he or she is required to act rationally and in good
faith.81 The requirement that the President must act rationally when
exercising his or her power ‘is a minimum threshold requirement applicable
to the exercise of all public power by members of the executive and other
functionaries’.82 Action that fails to pass this threshold is inconsistent with
the requirements of our Constitution and therefore unlawful.
The rationality test must be distinguished from the test for
reasonableness. The reasonableness standard asks whether the decision was
one ‘that a reasonable decision-maker could not reach’.83 Rationality
requires something different. In Albutt v Centre for the Study of Violence
and Reconciliation and Others, the Constitutional Court explained the
rationality standard as follows:
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.84
In Democratic Alliance v President of South Africa and Others, the
Constitutional Court further explained that a:
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.85
Rationality is a standard that will usually be 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 declare invalid an action of the President
merely because they disagree with the wisdom of the presidential decision.
As long as the purpose the President seeks to achieve by the exercise of
public power is within his or her authority, and as long as the President’s
decision, viewed objectively, is rational, a court cannot interfere with the
decision simply because it disagrees with it or considers that the power was
exercised inappropriately.86
The requirement that the President must act rationally means that there
must be a rational relationship between the constitutionally permissible
purpose the President seeks to achieve, on the one hand, and the manner in
which the President exercises the power or the means used to achieve the
purpose on the other hand. The President (and other members of the
executive) usually has a wide discretion in selecting the means to achieve
his or her 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 the President could have
selected.
Furthermore, if the President were to abuse the power vested in him or
her, a court would be able to review and set aside this exercise of power.
For instance, a decision to grant a pardon in consideration for a bribe could
no doubt be set aside by a court. This will also be the case if the President
were to misconstrue his or her powers. This is so because the exercise of all
public power – including the exercise of power by the President – must
comply with the Constitution, which is the supreme law, and the doctrine of
legality, which is part of the rule of law.87 It follows further that the
exercise of a power lawfully granted to the President must be rationally
related to the purpose sought to be achieved by the exercise of it.88
In Albutt, the 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.89 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. One of the principles that underpinned the
amnesty process was the participation of victims in seeking to achieve
national unity and reconciliation. It is these principles and values that must
underpin the special dispensation process.
The Constitutional Court further elaborated on this principle requiring
both a rational decision and a rational process in Democratic Alliance. The
Court found in this case 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 conscientiousness person of integrity to
that post and that dishonesty was incompatible with this goal. Given the
need for a rational relationship between achieving 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 had
ignored adverse findings as to the honesty of the appointee made by another
body, there was no rational process followed.90

CRITICAL THINKING

Variable standards for the rationality review

undermine respect for the rule of law
Du Plessis and Scott argue that the Constitutional Court
judgments based on legality challenges use different levels
of scrutiny and that in relation to the rationality review the
standard ‘varies depending on the circumstances of the
particular case. In some instances the court will apply the
test stringently, but in others the court takes a far more
deferential approach’.91 They complain that with variability
comes uncertainty. ‘A central and current problem with the
variability of rationality review is the lack of guidance laid
down by the Constitutional Court as to the standard’s
parameters and applicability.’ 92 This, they claim, among
other problems, undermines respect for the rule of law and
justify this as follows:
First, it causes problems for potential litigants who need to decide
whether to challenge decisions or conduct that has affected them.
Secondly, it creates difficulties for lawyers who have to advise
these clients on their potential prospects of success. Due to the
huge expense and far-reaching consequences of pursuing litigation
for the litigants, lawyers should be able to do more than merely
give vague statements about a litigant’s prospects of success. With
the increasingly variable nature of rationality review comes a
concomitant decrease in the certainty with which legal
representatives are able to advise clients who are contemplating a
rationality challenge. While the goal is not rigid legal certainty,
there must at least be some form of clarity or reasonable
predictability on the approach that will be adopted by a court.
Without this clarity comes the risk that the law is failing to meet the
 requirements clearly set out in the Hugo case. Finally, the lack of
clear guidelines creates uncertainty for the High Courts that need
direction on how to apply the rationality standard. Woolman neatly
captures the problems associated with a lack of judicial guidelines:
‘An approach to constitutional adjudication that makes it difficult
for lower court judges, lawyers, government officials and citizens
to discern, with some degree of certainty, how the basic law is
going to be applied, and to know, with some degree of certainty,
that the basic law is going to be applied equally, constitutes a
paradigmatic violation of the rule of law.’ These problems, relating
to the confusion created by the lack of guidelines, are compounded
by the importance of the safety-net function of the principle of
legality, since a legality challenge may be an applicant’s only
available avenue to challenge conduct.93

The authors point out that this variable standard is even

more problematic if one considers that in many instances
the information necessary to determine whether there was
a rational link between the purpose and the means used to
achieve it, ‘lies within the exclusive knowledge of the state
body’.94 In such situations it would be extremely difficult for
the objector to discharge the burden of proof. They
therefore suggest that in such cases if the objector makes
a detailed written request to the state for the reasons and
purpose of the conduct, and the state either fails to give
any reasons for the conduct or merely gives perfunctory
reasons, then in these situations it is the government which
ought to bear the onus of proving that the conduct was
rational or suffer the consequences of the court drawing
adverse conclusions as to the government’s justification.
Although the objection might be raised that this will place
too much of a burden on the government, ‘any increased
burden is greatly tempered by the low standard the
government has to meet in order to satisfy the test’.95

Although the exercise of power by the President is thus always in principle

reviewable by the courts on the grounds set out above, at least two caveats
must be raised. First, in Minister of Home Affairs v Liebenberg,96 the
Constitutional Court pointed out that when taking the President to court, it
would be important to avoid imprecise and open-ended citing of the
President in litigation. When asking a court to declare conduct of the
President unconstitutional, it is necessary to indicate precisely which
conduct is attributable to the President and falls foul of the Constitution.97
As the Constitutional Court stated in Von Abo v President of the Republic of
South Africa:
This requirement is important for at least two reasons.
One important reason is that a concisely worded order
would disclose the character of the conduct of the
President in issue and thereby indicate whether the court
concerned was properly clothed with jurisdiction to
resolve the dispute. Also the President, as respondent is
entitled to know which conduct has offended in order to
decide whether to appeal or to correct the
constitutionally recalcitrant conduct in issue.98
A second caveat relating to the review of the exercise of power by the
President is that when a court is required to do so it will not ordinarily
require the President to give oral evidence in person. In SARFU III, the
Constitutional Court found that this was a question ‘of considerable
constitutional significance going to the heart of the separation of powers
under our Constitution’.99 When making a decision on whether to call the
President as a witness, courts will have to consider two competing
considerations. First, courts are obliged to ensure that the status, dignity and
efficiency of the Office of the President is protected. At the same time,
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.100
As the Court explained in SARFU III:
We are of the view that there are two aspects of the
public interest which might conflict in cases where a
decision must be made as to whether the President ought
 to be ordered to give evidence. On the one hand, there is
the public interest in ensuring that the dignity and status
of the President is preserved and protected, that the
efficiency of the executive is not impeded and that a
robust and open discussion take place unhindered at
meetings of the Cabinet when sensitive and important
matters of policy are discussed. Careful consideration
must therefore be given to a decision compelling the
President to give evidence and such an order should not
be made unless the interests of justice clearly demand
that this be done. The judiciary must exercise
appropriate restraint in such cases, sensitive to the status
of the head of state and the integrity of the executive arm
of government. On the other hand, there is the equally
important need to ensure that courts are not impeded in
the administration of justice.101

5.3 The Deputy President and the rest of

the Cabinet

5.3.1 Appointment and removal

The Cabinet consists of the President, the Deputy President and other
Cabinet Ministers.102 The President appoints and may also dismiss the
Deputy President as well as the other members of the Cabinet.103 The
Deputy President must be appointed from among the members of the
NA.104 All but two members of the Cabinet must similarly be appointed
from among the members of the NA.105 The requirement that all but two
of the members of the Cabinet simultaneously have to serve as members of
the NA affirms the principle of parliamentary government, mirroring to
some degree the Westminster system. This, in theory, 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.106
This requirement waters down the strict separation between the legislature
and the executive as almost all the members of the executive (except for the
President and no more than two Cabinet Ministers) at all times also serve as
members of the legislature.
This arrangement was challenged during the certification process of the
Constitution on the ground that members of the Cabinet continue to be
members of the legislature and, by virtue of their positions, are able to
exercise a powerful influence over the decisions of the legislature. It was
contended that this is inconsistent with the separation of powers doctrine as
applied in the United States of America, France, Germany and the
Netherlands. The Constitutional Court rejected this argument, noting that
there is no universal model of separation of powers. In democratic systems
of government in which checks and balances result in the imposition of
restraints by one branch of government on another, there is no separation
that is absolute.107 The Court stated that:
The principle of separation of powers, on the one hand,
recognises the functional independence of branches of
government. On the other hand, the principle of checks
and balances focuses on the desirability of ensuring that
the constitutional order, as a totality, prevents the
branches of government from usurping power from one
another. In this sense it anticipates the necessary or
unavoidable intrusion of one branch on the terrain of
another. No constitutional scheme can reflect a complete
separation of powers: the scheme is always one of partial
separation.108
The fact that this overlap in personnel provides an important mechanism by
which the legislature is able to check the exercise of power by the executive
is emphasised by the provisions of section 92(2) of the Constitution. This
section indicates that members of the Cabinet are ‘accountable collectively
and individually to Parliament for the performance of their functions’, a
point to which we shall return in the next section.
The provision that allows the President to appoint two members to the
Cabinet who are not members of the NA creates the opportunity for the
President to appoint members to the Cabinet with special skills or
knowledge. This provision can be used to appoint members to the Cabinet
who are not active members of the governing party or who are not
politicians at all.
The President 109 or the NA 110 can remove the Deputy President and
the other members of the Cabinet from office. The power of the President to
dismiss members of his or her Cabinet is political in nature and will usually
be exercised after consultations with the leadership of the majority party
(although this is not a constitutional requirement). In a concurring judgment
in Masetlha, Sachs J argued that there was a ‘qualitative distinction’
between the dismissal by the President of a Cabinet Minister or Deputy
President, on the one hand, and his or her dismissal of other appointees like
the head of the NIA, on the other. This is because the former appointees are
‘purely political appointees placed in positions of governmental
leadership’.111 According to Sachs J, ‘[m]embers of Cabinet know that
they are hired and can be fired at the will of the President; and if fired, they
can mobilise politically, go to the press, even demonstrate outside
Parliament, and hope to muster support for themselves at the next congress
of their party’.112 This suggests that when the President fires his or her
Deputy President or another Cabinet Minister, the ordinary constitutional
and legislative requirements relating to fair labour practice do not apply.113
In terms of section 102(1) of the Constitution, the NA can also pass a
vote of no confidence with a simple majority vote in the Cabinet (excluding
the President), after which the President must reconstitute the Cabinet. This
means that where the NA retains confidence in the President but has lost
confidence in one or more members of the President’s Cabinet, it can force
the President to fire the Cabinet Minister or Ministers in whom it has lost
confidence. This is distinct from a motion of no confidence passed in terms
of section 102(2) which would require the President and the Cabinet to
resign.
In theory, section 102(1) of the Constitution provides the NA with a
powerful tool to hold individual members of the Cabinet accountable.
However, it is unlikely that the NA would pass a vote of no confidence in
the Cabinet. This is because the President and his or her Cabinet are almost
always members of the majority party in the NA and because most of the
members of the majority party in the NA are more junior members of the
same party as the President and the Cabinet, A vote of no confidence in the
Cabinet would probably only happen if the elected leadership of the
governing party instructs its members in the NA to pass such a vote of no
confidence. This could happen if the party elects new leaders at its elective
conference while the President and the Cabinet are perceived to be loyal to
the outgoing leadership. It could also happen if there is a coalition
government and a majority of members in the NA are unhappy with the
performance of one or more members of the coalition Cabinet.

PAUSE FOR REFLECTION

The actual power of party leadership on our

system of government
In 2007 at its Polokwane conference, the ANC elected a
new president, a new set of the ‘top six’ office-bearers of
the party as well as a newly constituted National Executive
Committee (NEC). President Thabo Mbeki and the
candidates proposed by his supporters for leadership
positions in the ANC were defeated at this conference, but
at first President Mbeki and his Cabinet continued to serve
in the executive undisturbed. As we have seen, the NEC
eventually decided to ‘recall’ President Mbeki who then
resigned as President of the country. The ANC NEC could
also alternatively have decided, although it did not do so, to
retain President Mbeki as President of the country while
demanding that he reconstitute his Cabinet to appoint the
newly elected members of the ANC top leadership to the
Cabinet. If the President had then refused to do so, the
NEC would have been able to rely on section 102(1) of the
Constitution and could have instructed its members in the
NA to adopt a vote of no confidence in the Cabinet
(excluding the President). The President would then have
 been forced to implement the decision of the NEC. This
imaginary scenario, unlikely as it may be, illustrates the
actual power of the leadership of the governing party in our
system of government even where members of that
leadership are neither members of the executive nor
members of the NA.

5.3.2 Powers of the Deputy President and the Cabinet

The Constitution does not list the powers of the Cabinet. As pointed out
above, section 82(2) of the Constitution determines that executive authority
is exercised by the President and his or her Cabinet and lists the various
powers which the Cabinet has to exercise. In terms of section 85 of the
Constitution the exercise of executive authority involves:
• the implementation of national legislation save where the Constitution or
an Act of Parliament provides otherwise
• developing and implementing national policy
• co-ordinating the function of state departments and administrations
• preparing and initiating legislation
• carrying out any other executive function provided for in the
Constitution or in national legislation.
To determine which powers and functions will be exercised by which
Cabinet Minister, it is important to note that the President is the person who
assigns powers and functions to the Deputy President as well as the rest of
the Cabinet.114 The Deputy President is required to assist the President in
the execution of the functions of government.115 This means that the
powers of the Deputy President are not defined by the Constitution. Rather,
the powers of the Deputy President are determined by the President.
Depending on the relationship between the President and the Deputy
President and the relative influence and power of these two people in the
governing party, the Deputy President could either fulfil a mostly
ceremonial role or could emerge as a powerful de facto Prime Minister.116
The President similarly assigns the powers and functions to the various
Ministers.117 This means that the President must assign executive authority
to his or her various Ministers in the Cabinet to enable them to exercise
their powers and perform their functions. The President often assigns
powers to Ministers by assigning different portfolios to different Cabinet
Ministers and assigns the administration and implementation of specific
pieces of legislation to individual Ministers. Ministers are then responsible
for the exercise of power in terms of the legislation assigned to them.
Members of the Cabinet are accountable individually to the President
and to the NA for the administration of their portfolios.118 They are
required to administer their portfolios in accordance with the policy
determined by the Cabinet.119 In a case that dealt with the relationship
between Premiers and provincial MECs, but must equally apply to the
Cabinet, the Eastern Cape High Court found that the President ‘bears
ultimate responsibility’ for ensuring that the national government complies
with the law and the other Cabinet members bear the responsibility for
operations in their departments.120
Members of the Cabinet are also collectively and individually
accountable to Parliament for the exercise of their powers and the
performance of their functions.121 They are correspondingly collectively
accountable for the performance of the functions of the national
government and for its policies.122 This principle of Cabinet solidarity
emphasises the fact that executive authority in South Africa is a
collaborative venture and that members of the Cabinet must act together
and must share responsibility for their actions.123 This notion of Cabinet
solidarity finds application in two different ways:
• First, as we have seen, the Constitution requires the Cabinet as a
collective to retain the confidence of the NA, which can pass a vote of
no confidence in the Cabinet (excluding the President) if the Cabinet
fails to do so.
• Second, section 85(2) 124 read with section 92(2) of the Constitution
suggests that the Cabinet has a duty to act together as they are
collectively accountable to Parliament for the decisions of the Cabinet.
Cabinet members may disagree with one another when they debate an
issue to decide the position of the Cabinet, but once such a decision has
 been taken, the members of the Cabinet have to take collective
accountability for the decisions of the Cabinet. In theory, if an
individual member of the Cabinet cannot tolerate or defend a decision of
the Cabinet, he or she has the option to resign from the Cabinet.125
Ministers are not only collectively accountable for the decisions and actions
of the Cabinet as a whole. Section 92(2) of the Constitution also holds the
Cabinet individually accountable to Parliament. Individual accountability
ensures that Parliament can identify the Cabinet member responsible for a
particular issue and can take action to hold that Cabinet member
accountable. As we have seen, the Constitution bestows wide powers on
Parliament to enable it to hold the individual members of the Cabinet
accountable. Moreover, in terms of section 92(3)(b) of the Constitution,
Cabinet members are compelled to provide Parliament with full and regular
reports concerning matters under their control. Collective ministerial
accountability means that Cabinet members ‘act in unison to the outside
world and carry joint responsibility before Parliament for the way in which
each member exercises or performs powers and functions’.126 According
to Rautenbach and Malherbe,127 individual responsibility entails the
following:
• a duty to explain to Parliament how the powers and duties under his or
her control have been exercised and performed (the Constitution
provides that members of the Cabinet must act in accordance with the
Constitution and provide Parliament with full and regular reports
concerning matters under their control)
• a duty to acknowledge that a mistake has been made and to promise to
rectify the matter
• a duty to resign if personal responsibility has been accepted.128
Both the individual and collective responsibilities of Cabinet members are
reinforced by section 96 of the Constitution which regulates their ethical
conduct.129 Section 96 provides that members of the Cabinet and Deputy
Ministers must act in accordance with a code of ethics prescribed by
legislation. 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 a conflict between their official responsibilities and
private interests, or enrich themselves or improperly benefit any other
person.130
The other members of the Cabinet are constrained in a similar manner to
that in which the President is constrained in the exercise of their duties. As
we pointed out above, when exercising public power in terms of the
Constitution, the President as well as other members of the Cabinet are
required to exercise their powers personally. In the case of Cabinet
Ministers, these powers would have been delegated to them by the
President or would derive from legislation whose administration the
President had assigned to them in terms of sections 92(1), 98 or 99 of the
Constitution.
Furthermore, the exercise of the powers by members of the Cabinet must
not infringe any provision of the Bill of Rights. Lastly, the exercise of the
powers by members of the Cabinet are also clearly constrained by the
principle of legality and, as is implicit in the Constitution, the Cabinet
members must act in good faith and must not misconstrue their powers.
These significant constraints flow from the supremacy of the Constitution
and the demands of the legality principle that is an incidence of the rule of
law.

CRITICAL THINKING

The role of the Deputy President

The Constitution does not define the powers of the Deputy
President. The Constitution merely states that the Deputy
President ‘must assist the President in the executions of
the functions of government’.131 The President therefore
decides to what extent the Deputy President is involved in
the day-to-day affairs of the government. The question is
whether this leeway should be used to make a sharper
distinction between the role of the President and the
Deputy President, with the former playing a more
 ceremonial role above the fray of day-to-day politics while
the latter in effect acts as a Prime Minister.
Some point to the French system as a possible model.
In France, the President is directly elected by the French
people every five years. The French Constitution declares
the President Head of State and gives the President
control over foreign policy and defence. After parliamentary
elections, which are held every five years or sooner if the
President calls them, the President appoints a Prime
Minister. The appointment requires the approval of
Parliament so the Prime Minister almost always comes
from the party that controls the legislature. The Prime
Minister serves as head of government and is in charge of
domestic policy and day-to-day governing. The Prime
Minister also recommends for presidential approval the
other members of his or her Cabinet.
When the directly elected President represents a
different party to that of the Prime Minister, a system of
‘cohabitation’ ensues. The President has to share power
with a Prime Minister from a different party and this can
lead to gridlock. In South Africa, such a situation will not
arise as the President and the Deputy President will be
from the same political party. The advantages of bestowing
more power to deal with the domestic policy agenda on the
Deputy President, acting as de facto Prime Minister as is
the case in France, is that it allows the division of labour
and could potentially improve the effectiveness of the
government. The dangers of such a system are that two
centres of power will develop and the conflict between the
President and Deputy President will paralyse the
government.

SUMMARY
The national executive comprises the President, the Deputy President and
the members of the Cabinet. The President is elected by the NA and the
President and his or her Cabinet must retain the confidence of the majority
of members of the NA to ensure the continued functioning of the
government. The President acts as Head of State and as head of the
executive, and in the latter case must act with the responsible member of
Cabinet who must countersign decisions relating to his or her portfolio.
When the NA passes a vote of no confidence in the President in terms of
section 102 of the Constitution, the President and his or her Cabinet must
resign. The President can also be impeached by the NA in terms of
section 89 of the Constitution for serious violations of the Constitution, for
serious misconduct or for reasons of incapacity. In theory, this means the
NA is more powerful than the President and his or her Cabinet as it elects
the President and can also dismiss the President. However, because the
President and his or her Cabinet are usually the leaders of the majority party
and control the party, it would only be in exceptional cases where the NA
would be able to assert its power over the executive branch of government.
Members of the Cabinet can, however, be held accountable by the NA.
The exercise of powers by either the President or other members of the
Cabinet is constrained. Because of the supremacy of the Constitution, the
exercise of power by the President and the Cabinet must always be
authorised by and conform to the requirements of the Constitution and
ordinary legislation. This means that the power of the President and the
Cabinet can be checked by the judiciary. The constraints on the executive
when exercising power are several fold: they are required to exercise the
powers personally and in accordance with the formal requirements set out
by the Constitution; the exercise of the powers must not infringe any
provision of the Bill of Rights; the exercise of the powers is also clearly
constrained by the principle of legality which requires a rational exercise of
power. As is implicit in the Constitution, this means the members of the
executive must act in good faith and must not misconstrue their powers.
The President has the power to appoint and also to dismiss members of
his or her Cabinet. The President also assigns tasks to members of his or her
Cabinet. This power to compose the Cabinet and to determine its functions
is constrained by larger political considerations. A dominant political party
with a tradition of collective leadership will require the President to consult
with the party leadership before making these decisions.
Members of the Cabinet are individually and collectively accountable to
Parliament. While robust debate may occur within the Cabinet, once a
decision is taken by Cabinet all members of the Cabinet are expected to
support the decision regardless of whether they agree with the decision.
Members of the Cabinet are both accountable to the President, who
appoints and dismisses them, and to the NA which elects the President and
can, in exceptional circumstances, also adopt a motion of no confidence in
individual members of the Cabinet to force the President to reconstitute his
or her Cabinet.

1 A coalition is formed if no party obtains at least 50% of the seats in the NA. Two or more
parties who together have more than 50% of the seats in the NA will then agree to work
together and form a government, based on agreed policies and principles.
2 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others (SARFU II) (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725
(4 June 1999) para 138.
3 S 197(1) of the Constitution states: ‘Within the public administration there is a public service
for the Republic.’ See also s 1 of the Public Service Act 103 of 1994 read with s 8 and Currie, I
and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1 Constitutional
Law 229.
4 S 86(1) of the Constitution.
5 S 86(3) of the Constitution.
6 Section 87 of the Constitution. This means that the South African President will be elected to
the NA, will take his or her seat, but will only remain a member of the NA for a few hours until
such time as he or she is elected President, after which he or she ceases to be a member of the
NA.
7 See s 88(2) of the Constitution.
8 For example, in terms of Rule 12.3 of the Constitution of the African National Congress
(ANC), its national conference – held every five years – elects the President, the Deputy
President, National Chairperson, the Secretary General, Deputy Secretary General, the
Treasurer General and the remaining 80 additional members of the National Executive
Committee (NEC) of the party. The NEC, as a whole, must consist of not less than 50%
women. See African National Congress Constitution as amended and adopted at the 53nd
National Conference, Mangaung, 2012, available at http://www.anc.org.za/show.php?
id=10177.
9 S 89(1) of the Constitution.
10 S 89(2) of the Constitution.
11 The South African system is not a pure system of parliamentary government as the President is
both Head of State and head of the executive, the President ceases to be a member of the NA
once elected and, as we shall see, two members of Cabinet can be appointed from outside the
 NA. Nevertheless, as far as the constitutional structure is concerned, the South African system
is essentially parliamentary in nature and not presidential in nature as the President is not
directly elected by the people. See also Murray, C and Stacey, R ‘The President and the
national executive’ in Woolman, S and Bishop, M (2013) Constitutional Law of South Africa
2nd ed rev service 5 18.3.
12 (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)
(27 August 2013).
13 S 47(3)(c).
14 Chikane, F (2012) Eight Days in September: The Removal of Thabo Mbeki 17–18.
15 S 90(1) of the Constitution.
16 S 90(2) of the Constitution.
17 S 90(3) of the Constitution.
18 S 90(4) of the Constitution.
19 See s 83(a) of the Constitution.
20 President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4;
1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 14.
21 See s 85(2) of the Constitution, which states, ‘The President exercises the executive authority,
together with the other members of the Cabinet, … ’, read with s 101(2): ‘A written decision
by the President must be countersigned by another Cabinet member if that decision concerns a
function assigned to that other Cabinet member’. See also President of the Republic of South
Africa and Others v South African Rugby Football Union and Others (SARFU III) (CCT16/98)
[1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999) para 38; and
Hugo para 14.
22 See generally Baxter, L (1984) Administrative Law 434–4. See also Hofmeyr v Minister of
Justice and Another 1992 (3) SA 108 (C) at 117 F–G.
23 SARFU III para 40: ‘There can be no doubt that when the Constitution vests the power to
appoint commissions of inquiry in the President, the President may not delegate that authority
to a third party. The President himself must exercise the power. Any delegation to a third party
would be invalid.’
24 SARFU III para 40:‘cases where a functionary vested with a power does not of his or her own
accord decide to exercise the power, but does so on the instructions of another’.
25 SARFU III para 40: ‘“passing the buck” contemplates a situation in which the functionary may
refer the decision to someone else’.
26 SARFU III para 41.
27 SARFU III para 65.
28 Currie and De Waal (2001) 237.
29 For a discussion on prerogative powers and how these were replaced by enumerated powers by
South Africa’s democratic Constitution, see Hugo paras 5–10.
30 S 79(1) of the Constitution.
31 Joint Rules of Parliament 203(2).
32 For a case where the President referred a Bill back to the NA, see Ex Parte President of the
Republic of South Africa: In re Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC
15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November 1999).
33 S 91(2) of the Constitution.
34 S 91(4) of the Constitution.
35 S 179(1)(a) of the Constitution.
36 S 202(1) of the Constitution.
37 S 207(1) of the Constitution.
38 S 209(2) of the Constitution.
39 Allen, J (2005, 14 June) South Africa: President Mbeki relieves Deputy President Zuma of post
AllAfrica available at http://allafrica.com/stories/200506140114.html.
40 See Hartley, R (2008, 23 September) The five big mistakes that cost Mbeki the Presidency
TimesLive available at http://blogs.timeslive.co.za/hartley/2008/09/23/the-five-big-mistakes-
that-cost-mbeki-the-presidency/.
41 Report of the Presidential Review Commission on the Reform and Transformation of the
Public Service in South Africa, Pretoria (1998) para 1.3 available at
http://www.info.gov.za/otherdocs/1998/prc98/index.html. See also Klug, H (2010) The
Constitution of South Africa: A Contextual Analysis 201.
42 Report of the Presidential Review Commission (1998) para 7.2.1.4.
43 Chothia, F and Jacobs, S ‘Remaking the Presidency: The tension between co-ordination and
centralisation’ in Jacobs, S and Calland, R (eds) (2002) Thabo Mbeki’s World: The Politics and
Ideology of the South African President 150.
44 Klug (2010) 203.
45 See generally Calland, R (2013) The Zuma Years: South Africa’s Changing Face of Power for a
discussion of the way in which the Office of the Presidency has operated during President
Jacob Zuma’s tenure.
46 Calland (2013) 50.
47 Friedman, S (2012, 6 August) Secrecy Bill Business Day Live available at
http://www.bdlive.co.za/articles/2011/11/22/steven-friedman-secrecy-bill.
48 S 174(6) of the Constitution which states: ‘The President must appoint the judges of all other
courts on the advice of the Judicial Service Commission.’
49 S 193(4) of the Constitution.
50 Act 32 of 1998.
51 S 174(3) of the Constitution.
52 S 174(3) of the Constitution.
53 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24;
2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) paras 14–26.
54 S 101(1) of the Constitution.
55 S 101(2) of the Constitution.
56 Currie and De Waal (2001) 241.
57 Hugo para 10.
58 SARFU III para 148. Even with regard to the interim Constitution, which did not contain an
explicit provision about the rule of law, the Constitutional Court found in Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October
1998) paras 56–9 that the doctrine of legality, an incidence of the rule of law, was an implied
provision of the interim Constitution. The Court stated at para 58, ‘It seems central to the
conception of our constitutional order that the legislature and executive in every sphere are
constrained by the principle that they may exercise no power and perform no function beyond
that conferred upon them by law. At least in this sense, then, the principle of legality is implied
within the terms of the interim Constitution.’
59 Hugo para 10.
60 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 15. The
Court referred to judgments by the Bavarian and Hessen Constitutional Courts to support this
claim. See BayVerfGHE NF 18 140 (1965) at 147; HessStGH NJW 1974, 791 at 793.
61 Hugo para 28.
62 Hugo para 29.
63 S 91(2) of the Constitution.
64 (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007).
65 Masetlha para 77.
66 Masetlha para 77.
67 (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998)
para 41.
68 Masetlha para 77.
69 The actions of the President may also be found to infringe a constitutional right given effect to
in legislation. In President of the Republic of South Africa and Others v M & G Media Ltd
(CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November
2011), for example, the Constitutional Court had to decide whether the refusal by the President
to hand over a Report commissioned by the President to the Mail & Guardian newspaper
contravened the provisions of the Promotion of Access to Information Act 2 of 2000 which
gives effect to s 32 of the Constitution.
70 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
71 SARFU III paras 146–8.
72 See Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09)
[2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC)
(23 February 2010).
73 Masetlha para 68.
74 Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom
Under Law v President of Republic of South Africa and Others, Centre for Applied Legal
Studies and Another v President of Republic of South Africa and Others (CCT 53/11, CCT
54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC)
(29 July 2011) para 54. See also Executive Council of the Province of the Western Cape v
Minister for Provincial Affairs and Constitutional Development and Another, Executive
Council of KwaZulu-Natal v President of the Republic of South Africa and Others
(CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1) SA 661; 1999 (12) BCLR 1360
(15 October 1999) para 54.
75 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
para 62.
76 Executive Council of the Western Cape Legislature para 62.
77 Executive Council of the Western Cape Legislature para 62. In a separate judgment in this case,
Mahommed J confirmed this principle, but for slightly different – more substantive – reasons.
Mahommed said at para 136 that these issues cannot be determined in the abstract but depend
‘inter-alia on the constitutional instrument in question, the powers of the legislature in terms of
that instrument, the nature and ambit of the purported delegation, the subject-matter to which it
relates, the degree of delegation, the control and supervision retained or exercisable by the
delegator over the delegatee, the circumstances prevailing at the time when the delegation is
made and when it is expected to be exercised, the identity of the delegatee and practical
necessities generally’.
78 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011).
79 Act 47 of 2001.
80 Justice Alliance paras 65–8.
81 See Hugo para 29. See also SARFU III para 148; Fedsure Life paras 56–8; Masetlha para 23;
Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009]
 ZACC 25; 2010 (1) SACR 325 (CC); 2010 (2) BCLR 140 (CC); 2010 (4) SA 82 (CC)
(30 September 2009) para 30; Albutt para 49; Democratic Alliance para 31.
82 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC 1; 2000 (2)
SA 674; 2000 (3) BCLR 241 (25 February 2000) para 90; Kruger v President of the Republic
of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3)
BCLR 268 (CC) (2 October 2008) para 99.
83 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT
27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004)
para 44.
84 (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5)
BCLR 391 (CC) (23 February 2010) para 51. See also Democratic Alliance para 30.
85 (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC)
(5 October 2012) para 32.
86 Democratic Alliance para 90. See also Prinsloo v Van der Linde and Another (CCT4/96)
[1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997) para 25;
Pharmaceutical Manufacturers para 90.
87 See Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04)
[2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) para 49;
Pharmaceutical Manufacturers para 20; SARFU III para 38; Fedsure Life para 32.
88 Albutt para 49.
89 Albutt para 71.
90 Democratic Alliance para 89.
91 Du Plessis, M and Scott, S (2013) The variable standard of rationality review: Suggestions for
improved legality jurisprudence’ South African Law Journal 130(3):597–620 at 597.
92 Du Plessis and Scott (2013) 598.
93 Du Plessis and Scott (2013) 608–9 (footnotes omitted).
94 Du Plessis and Scott (2013) 610.
95 Du Plessis and Scott (2013) 617–8.
96 (CCT22/01) [2001] ZACC 3; 2001 (11) BCLR 1168; 2002 (1) SA 33 (CC) (8 October 2001).
97 Liebenberg para 15. See also Von Abo v President of the Republic of South Africa (CCT 67/08)
[2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) (5 June 2009) para 45.
98 (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) (5 June
2009) para 45.
99 SARFU III para 240.
100 SARFU III para 242.
101 SARFU III para 243.
102 S 91(1) of the Constitution.
103 S 91(2) of the Constitution.
104 S 91(3)(a) of the Constitution.
105 S 91(3)(b) and (c) of the Constitution.
106 Currie and De Waal (2001) 254.
107 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 108.
108 First Certification para 109.
109 S 91(2) of the Constitution.
110 S 102 of the Constitution.
111 Masetlha para 228, where Sachs stated: ‘This suggests a qualitative distinction based on the
fact that the three are not purely political appointees placed in positions of governmental
leadership. Rather, they are important public officials with one foot in government and one in
the public administration. Members of Cabinet know that they are hired and can be fired at the
will of the President; and if fired, they can mobilise politically, go to the press, even
demonstrate outside Parliament, and hope to muster support for themselves at the next
congress of their party.’
112 Masetlha para 228.
113 See also Currie and De Waal (2001) 254 and Mphele v Government of the Republic of South
Africa 1996 (7) BCLR 921 (CK) 954E.
114 S 91(2) of the Constitution.
115 S 91(5) of the Constitution.
116 See Devenish, GE (1998) A Commentary on the South African Constitution 158. When
President Thabo Mbeki served as Deputy President in the Cabinet of President Nelson Mandela
he was widely regarded as playing the role of Prime Minister. See generally Gumede, WM
(2008) Thabo Mbeki and the Battle for the Soul of the ANC 33–62.
117 S 91(2) of the Constitution.
118 S 92(1) and 92(2) of the Constitution.
119 This is the necessary implication of s 92(2) which states that members of the Cabinet are
collectively responsible to Parliament.
120 See Magidimisi v Premier of the Eastern Cape and Others (2180/04, ECJ031/06) [2006]
ZAECHC 20 (25 April 2006) paras 20–1:
The first respondent is the Premier of the province. The Constitution vests her with
the ultimate executive authority of the province. The Premier and the Members of
the Executive Council are responsible for the implementation of legislation in the
province and for the performance of all other constitutional and statutory executive
functions of the province. The Premier has taken an oath of office to ‘obey, respect
and uphold the Constitution and all other law of the Republic’. This includes the
duties to uphold the rule of law… . As the ultimate executive authority in the
province the Premier thus bears the ultimate responsibility to ensure that the
provincial government honours and obeys all judgments of the courts against it.
The second respondent, the Member of the Executive Council for Finance, bears
the same general constitutional duties as those of the Premier, except that he does
not bear the ultimate executive authority of the Premier. In addition, however, he
bears responsibility for decisions of the provincial treasury. This would include
decisions relating to the payment of judgments against the province for the
payment of money.
121 S 92(2) of the Constitution.
122 S 96(3) of the Constitution.
123 SARFU II para 41. See also Murray and Stacey (2013) 18.32.
124 S 85(2) states: ‘The President exercises the executive authority, together with the other
members of the Cabinet …’
125 See Murray and Stacey (2013) 18.32. They point out that this aspect requires confidentiality
from members of the Cabinet and Cabinet members are usually not allowed to divulge
information about debates within Cabinet. Although this rule is not encoded in the
Constitution, it has been respected since the advent of the interim Constitution in 1994. The
need for confidentiality has also been accepted by the Constitutional Court in SARFU III
para 243.
126 See Rautenbach, IM and Malherbe, EFJ (2009) Constitutional Law 193.
127 Rautenbach and Malherbe (2009) 193.
128 See also Mafunisa, MJ (2008) The role of codes of conduct in promoting ethical conduct in the
South African public service South African Journal of Labour Relations 32(1):81–92.
129 See also the Code of Conduct for Assembly and Permanent Council Members available at
http://www.parliament.gov.za/live/content.php?Item_ID=235.
130 S 96(2) of the Constitution.
131 S 91(5).
Separation of powers and judicial
authority

6.1 The historic legacy of parliamentary sovereignty and

apartheid on the judiciary
6.2 The judiciary in the new constitutional dispensation
6.2.1 The structure of the judiciary in the 1996 Constitution
6.2.2 Constitutional jurisdiction of the various courts
6.2.2.1 Constitutional Court
6.2.2.2 Supreme Court of Appeal
6.2.2.3 High Courts
6.2.2.4 Magistrates’ courts
6.3 The independence of the superior courts
6.3.1 Introduction
6.3.2 Appointment of judges
6.3.3 The judicial oath of office
6.3.4 Security of tenure
6.3.5 Financial security
6.3.6 Limitation of civil liability
6.4 Independence of the lower courts and traditional courts
6.4.1 The lower courts under the interim Constitution
6.4.2 Independence of the lower courts under the 1996
Constitution
 6.4.3 Independence of traditional courts
6.5 The National Prosecuting Authority
Summary

6.1 The historic legacy of parliamentary

sovereignty and apartheid on the judiciary

Figure 6.1 Separation of powers and judicial authority

In a constitutional democracy the judiciary is often referred to as the
‘bastion of the legal order’.1 This is because in a constitutional democracy
with a supreme and enforceable constitution, an independent judiciary is
free to interpret and apply the law impartially and without consideration of
the wishes of politicians, powerful business interests or civil society groups.
According to this theory, the system of separation of powers and checks and
balances can only operate optimally if an independent and impartial
judiciary is empowered to enforce the provisions of the Constitution. In
such a system the judiciary acts as referee of the democratic process while
also checking whether the two political branches of government, the
legislature and the executive, act within the boundaries set out by the
constitution and by legislation. The more dominant a political party is in
government and the larger its majority in Parliament, the more likely it is
that other role players will revert to the independent and impartial courts to
check the exercise of powers of the legislature and executive, and to limit
the potential abuse of power and breaches of the constitution, which some
commentators associate with a prolonged period of political dominance by
one political party.
As South Africa is, at the time of writing, viewed by many as a one-party
dominant democracy,2 these tendencies are also arising in the South
African context. This places the judiciary in a difficult position. On the one
hand, it is empowered by the Constitution to enforce its provisions and to
declare invalid acts and omissions of the legislature and the executive that
fail to comply with the obligations imposed by the Constitution.3 The
judiciary has a duty to enforce the provisions of the Constitution and the
law, and to check the exercise of power by the legislature, executive and
other powerful role players. From a purely institutional and practical
political perspective, the judiciary can appear to be relatively weak in
relation to the other two branches of government. It may appear to lack the
political clout and democratic legitimacy associated with the elected
branches of government and is dependent on the other two branches of
government for its funding and for ensuring that its decisions are adhered
to. The truth is, as the Constitutional Court has pointed out, that the
judiciary cannot function properly without the support and trust of the
public.4 As former Chief Justice Ismail Mahomed explained:
Unlike Parliament and the executive, however, judicial
officers do not have the powers of the purse, the army,
and the police to execute their will. All the courts put
together in the country do not have a single soldier. They
would be impotent to protect the Constitution or to
execute the law if the agencies of the State which control
the mighty physical and financial resources of the State,
refused to command those resources to enforce the
 orders of the courts. The courts could then be reduced to
paper tigers with a ferocious capacity to roar and to
snarl but no teeth to bite and no sanctions to execute
their judgments which could then simply be reduced to
pieces of sterile scholarship, or futile exhibitions of
toothless wisdom. The ultimate power of the courts must
therefore rest on the esteem in which the judiciary is held
within the psyche and soul of the nation and in the
confidence it enjoys within the hearts and minds of
potential litigants in search of justice. That esteem and
that respect must substantially depend on the
independence and integrity of judicial officers. No public
figure anywhere, however otherwise popular, could
afford to be seen to defy the order of a court which
enjoys, within the nation, a perception of independence
and integrity. His or her own future would then be in
mortal jeopardy.5
The way in which this tension can best be dealt with is by recognising that
an independent and impartial judiciary is most effective when it respects the
separation of powers doctrine and does not unnecessarily intrude on the
domain of the legislature and the executive. However, this does not mean
the courts must be timid in protecting and enforcing the Constitution. In
International Trade Administration Commission v SCAW South Africa (Pty)
Ltd the Constitutional Court thus said:
In our constitutional democracy all public power is
subject to constitutional control. Each arm of the state
must act within the boundaries set. However, in the end,
courts must determine whether unauthorised trespassing
by one arm of the state into the terrain of another has
occurred. In that narrow sense, the courts are the
ultimate guardians of the Constitution. They do not only
have the right to intervene in order to prevent the
violation of the Constitution, they also have the duty to
do so. It is in the performance of this role that courts are
 more likely to confront the question of whether to
venture into the domain of other branches of government
and the extent of such intervention. It is a necessary
component of the doctrine of separation of powers that
courts have a constitutional obligation to ensure that the
exercise of power by other branches of government
occurs within constitutional bounds. But even in these
circumstances, courts must observe the limits of their
own power.6
Courts must therefore act in a restrained but principled manner and must
interpret and enforce the Constitution in a fearless way. This will help to
ensure that the political process remains fair, democratic space remains
open and political contestation remains robust while also playing a decisive
role in protecting the vulnerable and marginalised in society.7 When
considering the role and functions of the judiciary, it is important to take
note of this broader context within which the judiciary operates. This
section of the chapter therefore focuses on the powers, functioning and
composition of the judiciary in the light of the pressing need for the
judiciary to retain the esteem and respect of the wider society while also
scrupulously enforcing the Constitution and the law in an impartial and
independent manner. This will be done against the background of the
separation of powers doctrine.
Note from the outset that the judiciary was not left untainted by its role
during South Africa’s apartheid past.8 There are many reasons why the
judiciary cannot be said to have survived the apartheid era untainted. Before
1994, the doctrine of parliamentary supremacy was one of the cornerstones
of South African constitutional law. This doctrine obviously limited the
judiciary’s capacity to enforce individual rights and freedoms. As
Mtshaulana points out, because ‘the rule of law was equated to rule by law,
all arbitrary exercise of power, … exercised in terms of a law enacted by
correct procedures prescribed by Parliament was considered lawful and in
accordance with the rule of law’.9 Although some judges attempted to
interpret and apply the law in such a way as to limit the harsh effects of
apartheid laws, others diligently enforced apartheid laws. This meant that
the judiciary lacked legitimacy in the eyes of the majority of people in
South Africa.10
After anti-apartheid lawyers had won several important victories in the
courts in the 1980s during the States of Emergency,11 the Appellate
Division overturned many of these judgments. This confirmed that the
apartheid state had virtually unlimited power under the emergency
provisions.12 The outcome in these cases further confirmed the lack of
impartiality and independence of the highest court and eroded whatever
legitimacy the judiciary may still have enjoyed.
However, there is some disagreement about whether the timid approach
of many judges during the apartheid years entirely destroyed the judiciary’s
credibility. On the one hand, Madala argues that ‘the apartheid system
created a society in which the majority came to regard the courts, judges
and administration of justice with suspicion and anger’.13 On the other
hand, Ellmann argues that black South Africans surprisingly retained a
significant degree of confidence in the legal system and the courts in
particular.14 Ellmann argues that this confidence lent a measure of
legitimacy to the legal system. This, coupled with the history of anti-
apartheid lawyering, ‘might have encouraged South Africans to see virtue
in the ideals of fearless advocacy, independent judging and the Rule of
Law’, offering the promise that these same ideals would be honoured in the
post-apartheid South Africa.15
It is nevertheless clear that the institutionalisation of apartheid through
law and legal regulation transformed the legal system and entrenched the
political dominance of the minority over the majority through the operation
of law enforced by the judiciary.16 To this end, the judiciary ‘was unable to
resolve the impasse [of its subjugation] because it did not have the option to
review and reverse unjust laws, rather the courts and all other institutions
had to implement and administer such laws’.17 Because the judiciary
operated under the system of parliamentary supremacy, it meant that ‘the
judiciary during the apartheid period functioned as part of the apartheid
legal order and contributed to legitimising and sustaining blatantly
discriminatory and unjust legislation’.18 Judges were regarded as mere
mechanical interpreters of the law. Their function was seen by many –
including by most judges and legal practitioners – merely to ascertain the
intention of the apartheid legislature through the text of the legislation and
then to give effect to that intention, no matter how obnoxious the intention
might have been.19 Most judges believed that they could employ only
limited interpretational aids in the event of ambiguity or inconsistency, or if
adherence to the ordinary meaning of the text would result in absurdity.20
They adhered to the notion that any modifications, corrections or additions
to the text should be left to the legislature as the government branch
responsible for making law. Value judgments of the content of a statute
were irrelevant when interpreting and applying the legislation passed by the
apartheid Parliament.21 Corder draws the conclusion that:
The overall picture [of judicial attitudes] which emerges
is one of a group of men who saw their dominant roles as
the protectors of a stability … The judges expressed it in
terms of a positivistic acceptance of legislative
sovereignty, despite a patently racist political structure,
and a desire to preserve the existing order of legal
relations, notwithstanding its basis in manifest social
inequalities …22
These attitudes were amplified by the fact that the power of judges was
constrained under the system of parliamentary supremacy.23
However, despite problems with the formalistic approach to the
interpretation and application of unjust laws, there is widespread agreement
that before the advent of democracy, the judiciary did exhibit many of the
formal attributes of independence. Courtrooms were open to the general
public and judges enjoyed security of tenure and of salary even though
politics played a role in the promotion of judges to the Appellate Division.
Judges served until the age of 70 and could be removed only by the State
President at the request of the Houses of Parliament on the grounds of
misbehaviour or incapacity. Moreover, the salaries of judges were legally
guaranteed and could not be reduced during their term of office.24
 Notwithstanding these features, the judiciary was not entirely free from
indirect political influence through the process of appointment.25 Before
1994, the State President appointed judges in terms of section 10 of the
Supreme Court Act.26 However, in practice, it was the Minister of Justice
who made the appointments based on the recommendations of the Chief
Justice or Judge President of the relevant division of the High Court.27 The
State President then merely formalised these appointments. The process of
identifying potential candidates and their selection was also ‘shrouded in
secrecy’ and ‘political factors played a role in determining who secured
appointment and who was promoted’.28
Furthermore, in the pre-democratic era, the judiciary was composed
almost entirely of white males, drawn from the elitist and privileged ranks
of the ruling minority. Judicial appointees were drawn primarily from the
ranks of senior counsel practising as advocates at the various bars in South
Africa. Before 1990, only one white female had been appointed as a judge
in South Africa while no black judges had been appointed.29 The selection
process was a confidential one which meant that candidates could be hand-
picked based on whether their beliefs were sympathetic to the government
of the day.30 The first black male judge, Ismael Mahomed, was appointed
in 1991.31 When South Africa became a democracy in 1994, out of 166
judges, 161 were white men, two were white women, three were black men
and there were no black women at all.32

Table 6.1 Composition of the judiciary in 1994 33

Total White male Black male White female Black female

166 161 3 2 0

Before 1994, the Appellate Division of the Supreme Court (since renamed
the Supreme Court of Appeal), with its seat in Bloemfontein, was the
highest court in South Africa for all matters. The Appellate Division
considered appeals from the various Provincial Divisions of the Supreme
Court (since renamed High Courts), which had their seats in the main urban
centres across South Africa. The Supreme Court (including the Appellate
Division), together with a small number of other specialised courts created
by legislation,34 made up the superior courts.35 The lower courts consisted
primarily of the magistrates’ courts which were divided into regional and
district courts.
In 1927, a separate system of courts was also created for people
classified as ‘Africans’ to interpret and enforce customary law.36 This
traditional judicial system, which was designed to deal with customary law
through the institution of traditional leadership, was also subject to the
control of first the Union government and then the apartheid government.
The institution was controlled by native commissioners who included
traditional leaders. They became state functionaries, exercising authority
and constituting courts, no longer under the mandate of the people, but that
of the government of the day.37 Even though the traditional system of
justice had elements of a democratic culture because of its consensual
decision making, its values were fundamentally eroded by its
transformation by colonial and apartheid rule.

CRITICAL THINKING

How can the formation of new judicial structures

that would truly deal responsibly with living
customary law be achieved?
Vani argues that the colonial encounter fundamentally
changed the way in which customary law was applied and
developed in apartheid South Africa:
• Roman-Dutch and English law were given precedence
over bodies of customary law and developed at the
expense of customary law.
• Rules of evidence imported from a colonial legal system
and imposed by statute and convention in court
procedures resulted in the disappearance of customary
law rules and principles.
• Strict criteria were imposed to prove the legal validity of
customs. It had to be proved that customs had existed
from time immemorial, and that they were invariable,
continuous, certain, notorious, reasonable, peaceable
and obligatory. Customs could not be immoral or
opposed to an express enactment or to public policy.
• The rule of stare decisis ended the flexibility of
customary law by preventing innovation to meet the
changes in community opinion and sentiments. Modern
legal machinery forced customary law to fall in line with
national standards. 38
Customary law was ‘preserved, upgraded and frozen out of
relevance to the flux of the [traditional community’s] life’.39
This was evidenced by cases such Bhe and Others v
Khayelitsha Magistrate and Others 40 and Shilubana and
Others v Nwamitwa,41 which focused on the development
of customary law through the lens of either the common
law or the Constitution. Customary law thus ‘became
atrophied as a result of the rupture of its relationship with
other sources of law’.42
Even the manner in which customary law was recorded
changed. Before the colonial encounter, it ‘was a body of
orally transmitted precepts and precedents’.43 Where
disputes arose, ‘solutions were sought to take the total
situation of the parties into consideration’.44 These basic
features were eroded by the Union and apartheid
administration and customary law:
became a fixed body of law, indistinguishable from statute and
case law. Opinions and evidence given by villagers on custom in
courts were isolated from their contexts and utilized to describe a
single transaction or an offence which gave rise to a sense of
individual right not dependent on community opinion, enforced by
courts even in opposition to community opinion.45
 Moseneke J (as he then was) expressed a similar
sentiment in Daniels v Campbell and Others:
True to their worldview, [which ‘originates from the deep-rooted
prejudice’] judges of the past displayed remarkable ethnocentric
bias and arrogance at the expense of those they perceived
different. They exalted their own and demeaned and excluded
everything else.46

Given these changes and the transformation during Union

and apartheid rule of customary law and the institutions
called on to develop and enforce it, it can be argued that
the creation of new traditional courts that rely on the
discredited structures of traditional leadership runs the risk
of entrenching Union and apartheid forms of judicial
governance instead of truly respecting age-old customary
legal structures. But should the South African judiciary be
restructured to enable the formation of new judicial
structures that would truly deal responsibly with living
customary law? If so, how could this be achieved? There
are no easy answers to such questions as the debate
which started in 2012 with proposals for the creation of
new traditional courts illustrates.47

6.2 The judiciary in the new constitutional

dispensation

6.2.1 The structure of the judiciary in the 1996

Constitution
In fulfilling the objectives of the new constitutional order, the change in
government included the restructuring of the judicial system. The
restructuring of the judicial system included changes to the hierarchical
structure of the courts. Section 166 of the Constitution thus provides that
the courts are:
 (a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal
that may be established by an Act of Parliament to
hear appeals from High Courts;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of
an Act of Parliament, including any court of a status
similar to either the High Courts or the Magistrates’
Courts.
One of the most significant changes is that a new Constitutional Court was
created in the interim Constitution to serve as the final court in all
constitutional and related matters. The Constitutional Court is headed by the
Chief Justice who is also the head of the judiciary. The Chief Justice
exercises responsibility over the establishment and monitoring of norms and
standards for the exercise of the judicial functions of all courts.48 The
Deputy Chief Justice serves as the deputy leader of the judiciary and must
‘exercise such powers or perform such functions of the Chief Justice in
terms of this or any other law as the Chief Justice may assign to him or her;
and, in the absence of the Chief Justice, or if the office of Chief Justice is
vacant, exercise the powers or perform the functions of the Chief Justice, as
Acting Chief Justice’.49
The Constitutional Court has pointed out that the distinctive appointment
process for the Chief Justice and Deputy Chief Justice (discussed below)
indicates the high importance of their offices. They are required to
‘represent the judiciary and to act on its behalf in dealings with the other
arms of government’ 50 and they may also be called on ‘to perform
ceremonial and administrative duties’.51 As such, the Chief Justice and the
Deputy Chief Justice ‘are the most senior judges in the judicial arm of
government, and their distinctive manner of appointment reflects the fact
that they may be called upon to liaise and interact with the Executive and
Parliament on behalf of the Judiciary’.52
 Once they have been appointed, however, the Chief Justice and Deputy
Chief Justice take their place alongside nine other judges of the
Constitutional Court and have the same powers as any other judge of the
Constitutional Court in as far as decisions about individual cases before the
Court are concerned.53
The seat of the Constitutional Court is in Johannesburg, but the Chief
Justice may allow the Court to sit elsewhere in the country if it is expedient
or in the interests of justice to do so.54
The Appellate Division was renamed the Supreme Court of Appeal
(SCA). Apart from the name change, the Appellate Division is no longer a
division of the Supreme Court, but a fully fledged constitutional entity in its
own right.55 The SCA is headed by the President of the SCA who is
assisted by a Deputy President of that Court.56 In the absence of the
President of the SCA or if the office of President of the SCA is vacant, the
Deputy President perform the functions of the President of the SCA as
Acting President of that Court.57 The seat of the SCA is in Bloemfontein,
but the President of the SCA may allow it to sit elsewhere in the country if
it is expedient or in the interests of justice to do so.58
Both the Constitutional Court and the SCA have jurisdiction across the
Republic. They do not, however, have jurisdiction over exactly the same
subject matter. While the Constitutional Court has jurisdiction over all
constitutional and non-constitutional matters, the SCA does not. This is
because the SCA does not have jurisdiction over those matters that fall into
the exclusive jurisdiction of the Constitutional Court.
The Constitution also created a number of High Courts.59 These were
created from former provincial and local divisions of the Supreme Court
and from the various superior courts of the former so-called ‘independent’
homelands. The different High Courts have now been replaced with a single
High Court of South Africa. The High Court of South Africa, however,
consists of the Divisions determined by an Act of Parliament.60 The High
Court functions as a superior court and acts both as a court of first instance
and as a court hearing appeals from the lower courts. High Courts have
geographically limited jurisdiction. Each Division of the High Court
consists of a Judge President and one or more Deputy Judges President,
each with specified headquarters within the area under the jurisdiction of
that Division and so many other judges as may be determined in accordance
with the prescribed criteria.61 The Judge President leads his or her Division
and is also responsible for the co-ordination of the judicial functions of all
magistrates’ courts falling within the jurisdiction of that Division.62
In 2013, Parliament passed legislation to streamline the High Court
system to create separate Divisions of the High Court for each of South
Africa’s nine provinces.63 The High Courts now consist of the following
Divisions:
• Eastern Cape Division, with its main seat in Grahamstown
• Free State Division, with its main seat in Bloemfontein
• Gauteng Division, with its main seat in Pretoria
• KwaZulu-Natal Division, with its main seat in Pietermaritzburg
• Limpopo Division, with its main seat in Polokwane
• Mpumalanga Division, with its main seat in Nelspruit
• Northern Cape Division, with its main seat in Kimberley
• North West Division, with its main seat in Mahikeng
• Western Cape Division, with its main seat in Cape Town.
The magistrates’ courts remain essentially unchanged. However, they have
now become creatures of the Constitution and, to strengthen the
independence of the judiciary, magistrates no longer fall within the ambit of
the public service.64 Magistrates’ courts and all other courts are
empowered in terms of section 170 of the Constitution to decide any matter
determined by an Act of Parliament. Magistrates’ courts may not enquire
into or rule on the constitutionality of any legislation or conduct of the
President. Although these courts are essential for the administration of
justice, serving as the first port of call for most people who encounter the
legal system, we will not focus on these courts because of their lack of
constitutional jurisdiction.
Apart from the courts referred to in the Constitution, there are also
several specialist courts created by statute. These specialist courts may be
divided into superior specialist courts and inferior specialist courts.
 The superior specialist courts include, but are not limited to, the
following:
• The Labour Court was established in terms of section 151 of the Labour
Relations Act 65 to deal with disputes between employers and
employees.
• The Land Claims Court was established in terms of section 22 of the
Restitution of Land Rights Act 66 to resolve disputes that arise from land
claims in relation to South Africa’s land reform initiative. This initiative
came about as a result of the legacy of apartheid that left many South
Africans destitute after the apartheid government dispossessed them of
their land.
• The Tax Court was established in terms of section 83(3) of the Income
Tax Act.67
The inferior specialist courts include, but are not limited to, the following:
• The Children’s Court was established to deal with matters related to
children such as custody.68
• The Maintenance Courts were established in terms of the Maintenance
Act 69 to deal with issues around maintenance.
• The Domestic Violence Courts were established in terms of the Domestic
Violence Act.70
These specialist courts, which Berman refers to as ‘problem-solving courts’,
are an important initiative seeking to provide a significant opportunity for
using litigation as a transformative strategy in the promotion of
constitutional values and principles.71 However, apart from the Equality
Courts, these courts do not usually play a direct role in the adjudication of
constitutional issues.

6.2.2 Constitutional jurisdiction of the various courts

Jurisdiction refers to the power or competence of a court to hear and
adjudicate on, and to determine and dispose of, a legal dispute. In civil
matters, litigants must ensure that they approach the correct court with the
requisite jurisdiction to hear the matter. In criminal matters, the National
Prosecuting Authority (NPA) must ensure that a person is tried in the
appropriate court with the power to consider his or her guilt and hand down
the appropriate sentence. If we approach a court that does not have the
jurisdiction to hear a matter or if we approach a court who has jurisdiction
to hear similar matters but only on appeal, then the court will dismiss the
application before hearing the merits of the case because it lacks
jurisdiction to hear the case.
The rules of jurisdiction when constitutional issues are raised in a case
differ in important ways from the rules of jurisdiction in non-constitutional
matters. The reason for this is, in part, that in constitutional matters litigants
have access to distinct remedies not usually available in non-constitutional
matters. As jurisdictional issues are inextricably linked to questions of what
remedy is being sought, there is a close relationship between constitutional
jurisdiction and the remedy being sought in a particular constitutional
matter. For example, constitutional cases often revolve around arguments
about whether the law or the action of someone is unconstitutional and
invalid, and whether it should be set aside. If a court does invalidate and set
aside legislation or the acts of the President or other members of the
executive, the court will be ‘interfering’ in the work of the democratically
elected branches of government. The Constitution grants jurisdiction to
certain courts only to award such remedies. There are also special rules
relating to when these remedies may be granted and when the ruling by a
court on remedies is final or not. There will therefore always be a close
relationship between the remedy that is sought and the question of whether
a court has jurisdiction in a case so this section should be read with the
section on constitutional remedies.72
In South Africa, the question of constitutional jurisdiction is further
complicated by the fact that the interim and then the 1996 Constitutions
created a new Constitutional Court which was welded onto the existing
judicial system. In the interim Constitution, the Constitutional Court was
initially placed in an equal position with the SCA, which retained its final
jurisdiction over all non-constitutional matters but had no jurisdiction at all
over constitutional issues.73 In the 1996 Constitution this arrangement was
changed and the SCA now also enjoys constitutional jurisdiction 74
although the Constitutional Court retained final jurisdiction over all
constitutional matters.75 To complicate matters further, the jurisdiction of
the Constitutional Court was extended by the Constitution Seventeenth
Amendment Act of 2012 (which came into effect in August 2013). When
considering the various jurisdictional issues, it is therefore important to note
this history and to understand that the system now provides for two distinct
jurisdictional scenarios: first, in matters not raising any constitutional or
related issue, and second, in matters raising constitutional issues. Given the
fact that it is not always easy to determine whether a matter raises a
constitutional issue or not, this division of jurisdictional turf is not without
its problems.

6.2.2.1 Constitutional Court

Until August 2013, the Constitutional Court was a specialist court and not a
court of general jurisdiction.76 However, it is important to note that the
Constitution Seventeenth Amendment Act has now drastically changed the
jurisdiction of the Constitutional Court. The jurisdiction of the
Constitutional Court before this change must be contrasted with the
arrangement which came into effect in 2013. Previously, the Constitutional
Court was the court of final instance in relation to constitutional matters
‘and issues connected with a decision on a constitutional matter’.77 This
included any question that was not a constitutional matter but nevertheless
had to be decided by the Court in order to reach a decision on a
constitutional matter.78 Constitutional matters include ‘any issue involving
the interpretation, protection or enforcement of the Constitution’.79
Although the extension of the jurisdiction of the Constitutional Court
beyond constitutional issues (which we discuss below) appears to be a
dramatic change, this change in jurisdiction may have less of an impact than
we might think. This is because it is not always easy to distinguish between
a constitutional matter and a non-constitutional matter. There are several
reasons for this:
• First, in the important case, Pharmaceutical Manufacturers Association
of South Africa and Another: In re Ex parte President of the Republic of
South Africa and Others, the Constitutional Court stated that:
 I cannot accept this contention which treats the common
law as a body of law separate and distinct from the
Constitution. There are not two systems of law, each
dealing with the same subject matter, each having
similar requirements, each operating in its own field with
its own highest court. There is only one system of law. It
is shaped by the Constitution which is the supreme law,
and all law, including the common law, derives its force
from the Constitution and is subject to constitutional
control.80
Read with section 39(2) of the Constitution, which states that ‘[w]hen
interpreting legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights’, this means that any
interpretation of legislation and any development of the common law or
customary law will potentially raise constitutional issues. Legislation
must be interpreted in line with the spirit, purport and object of the Bill
of Rights if the words are reasonably capable of such an interpretation or
are not unduly strained.81 This makes such an interpretative exercise a
constitutional matter. This is also called reading down.82 Where ‘the
common law deviates from the spirit, purport and objects of the Bill of
Rights the courts have an obligation to develop it by removing that
deviation’.83 This means that potentially any argument about the
development of the common law or the interpretation of legislation could
raise constitutional issues in an indirect manner.84
• Second, under the 1996 Constitution, ‘[t]he exercise of all public power
must comply with the Constitution which is the supreme law, and the
doctrine of legality which is part of that law’.85 Any challenge to the
exercise of public power is therefore a constitutional matter and is
susceptible to the jurisdiction of the Constitutional Court. Public power
is usually exercised by a public body or institution authorised by the
 Constitution or ordinary law to exercise that power. It includes power
exercised by the President, Ministers, state officials and the courts.86
• Third, the Constitutional Court also has the jurisdiction to hear disputes
as to whether any law or conduct is inconsistent with the Constitution
and can declare such law or conduct unconstitutional and invalid.
• Fourth, the Constitutional Court can determine issues relating to the
status, powers and functions of an organ of state.87
• Fifth, questions arising from the interpretation and application of
ordinary legislation that has been enacted to give effect to constitutional
rights or in compliance with the legislature’s constitutional obligations
are also constitutional matters.88 For example, section 9(4) of the
Constitution requires the legislature to enact legislation to prohibit unfair
discrimination. The legislature consequently passed the Promotion of
Equality and Prevention of Unfair Discrimination Act 89 to give effect to
this injunction. Thus, any interpretation and application of this Act
would give rise to a constitutional issue.90
Although the scope of what constitutes a constitutional issue is therefore
potentially extraordinarily broad, this does not mean that all factual and
legal questions can be turned into constitutional issues. However, the
extension of the jurisdiction of the Constitutional Court in 2013 has now
rendered this distinction less important as far as points of law are
concerned. The amended section 167(3)(a) of the Constitution now makes
clear that the Constitutional Court is the highest court of the Republic.
Previously, this section stated that the Constitutional Court was the highest
Court for all constitutional matters only. The 2013 amendments now
determine that the Constitutional Court may decide constitutional matters
and
any other matter, if the Constitutional Court grants leave
to appeal on the grounds that the matter raises an
arguable point of law of general public importance
which ought to be considered by that Court.91
The Constitutional Court itself has the power to make the final decision on
whether a matter is within its jurisdiction.92 These amendments mean that
the Constitutional Court is no longer confined to hearing constitutional
matters and matters that are connected with constitutional matters. The
Court can now also consider non-constitutional matters. However, the
Constitutional Court cannot hear appeals based solely on factual disputes.
In cases where an appeal is lodged with the Constitutional Court that does
not deal with a constitutional matter, the Constitutional Court has a
relatively wide discretion to decide whether it will hear the appeal or not. In
doing so, it will have to take two factors into consideration. First, it can
only hear appeals on the grounds that the matter raises an arguable point of
law. Second, this point of law must be of such general public importance
that it is necessary for the Constitutional Court to hear the matter to give
clarity on this point of law. As we shall see below, in certain cases the
Constitutional Court has no choice and must consider a case before it.
However, where an appeal is lodged with the Constitutional Court in a non-
constitutional matter, the Constitutional Court itself can decide whether to
hear the case but only if the two requirements set out above are met. Even
if the two requirements are met, this does not mean the Constitutional Court
must hear the appeal. It has a discretion to decide whether to hear it or not.
As pointed out above, matters that turn purely on questions of fact are
not constitutional matters nor do they raise ‘an arguable point of law’. This
means such matters that raise only purely factual disputes cannot be heard
by the Constitutional Court. Similarly, the Constitutional Court cannot hear
matters involving the straightforward application of law that do not raise
constitutional questions, do not require the Court to interpret or develop
legislation, common law or customary law in line with the spirit, purport
and objects of the Bill of Rights, and do not raise an arguable point of
law.93

PAUSE FOR REFLECTION

The distinction between factual disputes and

disputes about points of law
The Constitutional Court’s judgment in S v Boesak 94
provides a helpful illustration of the distinction between
factual disputes and disputes about points of law in the
context of the pre-seventeenth amendment regime which
still required a constitutional question to be raised for the
Constitutional Court to hear the case. Boesak was
convicted on a charge of fraud and three charges of theft in
the High Court. On appeal, the SCA set aside the
conviction on one of the theft charges but dismissed the
appeal on the other charges. It nevertheless reduced the
sentence to one of three years’ imprisonment.95
Boesak approached the Constitutional Court to have the
remaining convictions set aside, arguing that there was not
sufficient evidence to support the findings of the SCA that
his guilt had been proven beyond reasonable doubt. The
SCA, Boesak argued, had interpreted the facts wrongly.
This was a violation of the right to be presumed innocent
guaranteed by section 35(3)(h) of the Bill of Rights.
The Constitutional Court found that, in essence, Boesak
was arguing that the High Court and the SCA had got the
facts wrong. It found that even if this were true, this would
not raise a constitutional issue. The Court then went on to
identify three broad principles informing the identification of
constitutional issues:
(a) A challenge to a decision of the SCA on the basis only that it is
wrong on the facts is not a constitutional matter.
In the context of section 167(3) of the Constitution the
question whether evidence is sufficient to justify a finding of
guilt beyond reasonable doubt cannot in itself be a
constitutional matter. Otherwise, all criminal cases would be
constitutional matters, and the distinction drawn in the
Constitution between the jurisdiction of this Court and that of
the SCA would be illusory. There is a need for finality in
criminal matters. The structure of the Constitution suggests
clearly that finality should be achieved by the SCA unless a
constitutional matter arises. Disagreement with the SCA’s
assessment of the facts is not sufficient to constitute a breach
 of the right to a fair trial. An applicant for leave to appeal
against the decision of the SCA must necessarily have had an
appeal or review as contemplated by section 35(3)(o) of the
Constitution. Unless there is some separate constitutional
issue raised therefore, no constitutional right is engaged when
an appellant merely disputes the findings of fact made by the
SCA.
(b) The development of, or the failure to develop, a common-law
rule by the SCA may constitute a constitutional matter.
This may occur if the SCA developed, or failed to develop, the
rule under circumstances inconsistent with its obligation
under section 39(2) of the Constitution or with some other
right or principle of the Constitution.
(c) The application of a legal rule by the SCA may constitute a
constitutional matter.
This may occur if the application of a rule is inconsistent with
some right or principle of the Constitution.96

The Constitutional Court’s jurisdiction can be divided into concurrent

jurisdiction and exclusive jurisdiction. Its concurrent jurisdiction is
exercised concurrently with the High Courts and the SCA. On certain
matters, only the Constitutional Court can decide, giving it exclusive
jurisdiction on these issues.
The 1996 Constitution provides for the concurrent exercise of
jurisdiction of the High Courts, the SCA and the Constitutional Court in
respect of direct challenges to the constitutionality of all forms of
legislation. This means that any challenge to a provision of an Act of
Parliament, a provincial legislature or delegated legislation would usually
first be lodged in the High Court. If the High Court or later the SCA
declares the legislation invalid, the Constitutional Court must confirm this
before such an order will have any force or effect.97 This means all
decisions by a High Court or the SCA declaring a legislative provision
unconstitutional and invalid will always end up in the Constitutional Court
as the Constitutional Court is required either to confirm the order of
invalidity of the lower court or to reject that order. This is necessary
because it would be untenable for a situation to arise where a High Court
declares a legislative provision to be invalid and this provision is thus
inoperable within the jurisdiction of that High Court while it remains in
force in other jurisdictions. If a lower court does not declare the legislation
invalid, an appeal can nevertheless be lodged against this decision with the
Constitutional Court.
Jurisdiction on issues around the interpretation and application of
legislation, common law or customary law are also shared between the
High Courts, SCA and Constitutional Court. As we have seen, where a
dispute arises on an arguable point of law of general public importance
(even when this point of law is non-constitutional in nature), then the
Constitutional Court also has concurrent jurisdiction with lower courts.
Over and above this concurrent jurisdiction, the Constitutional Court also
has exclusive jurisdiction to hear cases dealing with a distinct set of issues.
As the Constitutional Court explained in Women’s Legal Trust v President
of the Republic of South Africa and Others:
These exclusive competencies draw on the Court’s
political legitimacy. They reflect its special status as
guardian of the Constitution, with exclusively
constitutional functions and a specially determined
composition. Any exercise of the judicial function may
cause tension with the other arms of government and
trigger political contention. Hence the mere fact that a
matter is or may become politically fraught does not of
itself mean that only this Court has jurisdiction to deal
with it. More is needed. Dispositive indications may lie in
the nature of the obligation, whether its content can be
clearly ascertained, whether it is stated unambiguously
in the Constitution, how its content is determined, and
whether it is capacity-defining or power-conferring.98
Thus, the Constitutional Court has exclusive jurisdiction to decide disputes
between organs of state in the national or provincial sphere concerning the
constitutional status, powers or functions of any of those organs of state.99
For example, where a dispute arises between a provincial government and
the national government about their respective powers or between a
provincial legislature and the national Parliament about the respective
legislative powers of each, then only the Constitutional Court has
jurisdiction to hear the case.
The Constitutional Court also has exclusive jurisdiction to decide on the
constitutionality of any parliamentary or provincial Bill referred to it by the
President or the relevant Premier in terms of section 79 or 121 of the
Constitution when the President or the respective Premier has reservations
about the constitutionality of a Bill.100 In addition, the Constitutional Court
has exclusive jurisdiction to decide on applications by members of the NA
or provincial legislatures to declare invalid all or parts of an Act of
Parliament or the provincial legislatures in terms of section 80 or 122 of the
Constitution.101 In terms of these sections, such an application can only be
made if supported by at least one-third of the members of the NA 102 or at
least 20% of the members of a provincial legislature.103 Such an
application must be made within 30 days of the date on which the President
or the Premier assented to and signed the Act.104 This provision allows
opposition parties who believe that a newly passed Act is unconstitutional
to refer the Act to the Constitutional Court before the Act is implemented.
The Constitutional Court has exclusive jurisdiction to decide on the
constitutionality of any amendment to the Constitution.105 Note, however,
that in United Democratic Movement v President of the Republic of South
Africa and Others (No 2), the Court stated that amendments to the
Constitution passed in accordance with the manner and form requirements
of section 74 of the Constitution ‘become part of the Constitution’.106
Once part of the Constitution, amendments cannot be challenged on the
grounds of inconsistency with other provisions of the Constitution. This
means ‘[t]he Constitution, as amended, must be read as a whole and its
provisions must be interpreted in harmony with one another. It follows that
there is little if any scope for challenging the constitutionality of
amendments that are passed in accordance with the prescribed procedures
and majorities’.107 Challenges to the constitutionality of amendments to
the Constitution would therefore be based on whether the correct procedure
was followed when passing the amendment. For example, if an amendment
to the Constitution directly or indirectly amends section 1 of the
Constitution, such an amendment must be passed with a 75% majority in
the NA. If an amendment of any section of the Constitution would have the
effect, say, of watering down the provision in section 1 regarding the
supremacy of the Constitution and it is not passed with a 75% majority, the
Court would be able to invalidate the amendment.
It is unclear whether a duly passed amendment of the ‘basic structure’ of
the Constitution could be challenged in the Constitutional Court. In Premier
of KwaZulu-Natal and Others v President of the Republic of South Africa
and Others, Mahomed DP made the following obiter remarks about this
matter:
There is a procedure which is prescribed for
amendments to the Constitution and this procedure has
to be followed. If that is properly done, the amendment is
constitutionally unassailable. It may perhaps be that a
purported amendment to the Constitution, following the
formal procedures prescribed by the Constitution, but
radically and fundamentally restructuring and
reorganising the fundamental premises of the
Constitution, might not qualify as an ‘amendment’ at
all.108
Given the fact that any radical restructuring of the fundamental premises of
the Constitution would, in effect, constitute an amendment of section 1 of
the Constitution which requires a 75% majority in the NA, it is difficult to
see that the Constitutional Court would ever have the opportunity to
develop this obiter statement.
The Constitutional Court has exclusive jurisdiction to decide that
Parliament or the President has ‘failed to fulfil a constitutional
obligation’.109 The words ‘fulfil a constitutional obligation’ must be given
a narrow meaning.110 This is because the words are part of a broader
distribution of jurisdictional competence in the Constitution. We need to
interpret the words narrowly to ensure that they do not clash with the
provision in section 172(2)(a) that gives other courts jurisdiction over
‘conduct of the President’. The same reasoning applies to obligations the
Constitution imposes on Parliament as section 172(2)(a) also grants other
courts jurisdiction over the validity of Acts of Parliament.111 While the
phrase ‘failed to fulfil a constitutional obligation’ in section 167(4)(e) must
be narrowly construed, section 172(2)(a), which gives other courts
competence to scrutinise the constitutionality of presidential and
parliamentary acts, must be widely interpreted 112 to ensure that absurdities
do not arise. Thus the Constitutional Court has held that it alone has
jurisdiction to determine whether Parliament has fulfilled its obligation to
facilitate public involvement in passing legislation.113 Lastly, only the
Constitutional Court has the jurisdiction to certify a provincial constitution
in terms of section 144.114
As pointed out above, in all matters not exclusively reserved for the
jurisdiction of the Constitutional Court, the Constitutional Court ordinarily
functions as a court of appeal, hearing cases that come to it after decisions
by the High Courts and/or the SCA, or hearing cases in which it is required
to consider whether to confirm an order of invalidity from lower courts.
However, section 167(6) of the Constitution allows direct access to the
Constitutional Court – even in cases where it does not have exclusive
jurisdiction – when in the view of the Constitutional Court it is in the
interest of justice to allow such direct access. This is an extraordinary
procedure and the Court will only grant direct access to litigants on issues
on which it has concurrent jurisdiction in the most exceptional cases. This
means that ‘compelling reasons are required to justify a different procedure
and to persuade this Court that it should exercise its discretion to grant
direct access’.115 As a general rule, the Constitutional Court is reluctant to
grant direct access as it would then have to decide the legal and factual
issues without the benefit of the wisdom of one or more lower courts. It has
ruled that the ‘Court is placed at a grave disadvantage if it is required to
deal with difficult questions of law, constitutional or otherwise … virtually
as a court of first instance’.116 It is also not considered to be in the interest
of justice for a court to sit as a court of first and last instance as the losing
litigants will then have no chance of appealing against the decision given:
 Experience shows that decisions are more likely to be
correct if more than one court has been required to
consider the issues raised. In such circumstances the
losing party has an opportunity of challenging the
reasoning on which the first judgment is based, and of
reconsidering and refining arguments previously raised
in the light of such judgment.117
To decide whether it is in the interest of justice to grant direct access, the
Court will ask whether the case is of such urgency that direct access should
be granted.118 This is because the Court has argued that it was normally
important for a case first to be heard in the High Court (and perhaps the
SCA) because of the ‘benefits that may be derived from the judgments of
other courts’.119 Those courts should therefore not ordinarily be bypassed
by litigants who want to speed up the hearing of their case.120 The Court
first considered the provision relating to direct access in Bruce and Another
v Fleecytex Johannesburg CC and Others where it set out the factors that
are relevant to applications for direct access to it as follows:
Whilst the prospects of success are clearly relevant to
applications for direct access to this Court, there are
other considerations which are at least of equal
importance. This Court is the highest Court on all
constitutional matters. If, as a matter of course,
constitutional matters could be brought directly to it, we
could be called upon to deal with disputed facts on which
evidence might be necessary, to decide constitutional
issues which are not decisive of the litigation and which
might prove to be purely academic, and to hear cases
without the benefit of the views of other Courts having
constitutional jurisdiction. These factors have been
referred to in decisions given by this Court on
applications for direct access under the interim
Constitution, and are clearly relevant to the granting of
 direct access under the 1996 Constitution. It is,
moreover, not ordinarily in the interests of justice for a
court to sit as a court of first and last instance, in which
matters are decided without there being any possibility
of appealing against the decision given.121

CRITICAL THINKING

Does the SCA still have a meaningful role to

play?
As we have noted, the Constitution Seventeenth
Amendment Act has changed the jurisdictional landscape.
Among other things, this amendment effected changes to
section 167(3)(a) of the Constitution to affirm the
Constitutional Court as ‘the highest court of the Republic’.
This amendment thus turned the Constitutional Court into
the court of final instance for all matters of points of legal
doctrine (but not of factual disputes or disputes about the
application of legal principles to factual disputes), whether
these matters relate to the Constitution or not.
The SCA (discussed below) has therefore ceased to be
the highest court for all non-constitutional matters. The
proposed amendments have potentially far-reaching
consequences, but these are ameliorated by amendments
to section 167(3)(b) of the Constitution which states that
the Constitutional Court may decide constitutional matters
and ‘any other matter’, but only ‘if the Constitutional Court
grants leave to appeal on the grounds that the matter
raises an arguable point of law of general public
importance which ought to be considered by that Court’.
The Constitutional Court retains the power to make the
final decision on whether a matter is within its
jurisdiction.122 Section 167(3)(b) extends the jurisdiction of
the Constitutional Court to all matters but allows the Court
 to manage its own docket by granting it the discretion to
decide when to take on non-constitutional matters on the
basis that these raise a point of law of general public
importance.
Given the fact that section 39(2) of the Constitution
already allows the Court to consider matters regarding the
development of the common law and customary law and
the interpretation of legislation in line with the spirit, purport
and object of the Bill of Rights, it is unclear to what extent
the amendment will affect the case load of the Court. In
effect, the answer to this question will depend on the rules
developed by the Constitutional Court around when to
consider a case that does not directly or indirectly raise any
constitutional issue. However, arguably, the amendments
lower the status and diminish the influence of the SCA as it
no longer acts as the highest court in all non-constitutional
matters. The question that can be posed is whether the
SCA has not become superfluous. What meaningful role
does the SCA still play, given that it no longer acts as the
highest court in any matter apart from on disputes of fact?

6.2.2.2 Supreme Court of Appeal

As pointed out above, the interim Constitution established a seemingly clear
division between the jurisdiction of the two appellate courts in relation to
constitutional and non-constitutional issues.123 The SCA was the court of
final instance in non-constitutional matters while the Constitutional Court
was the court of final instance in constitutional matters. In terms of the
interim Constitution, the SCA had no jurisdiction to deal with constitutional
matters.
The 1996 Constitution changed this arrangement and awarded the SCA
jurisdiction to hear and decide constitutional matters as it is empowered to
hear appeals ‘in any matter arising from the High Court’.124 Before the
advent of the Constitution Seventeenth Amendment Act where a matter did
not include a constitutional issue, the SCA was the court of final instance.
Now the SCA may be the court of final instance in non-constitutional issues
but only if the Constitutional Court decides not to hear an appeal from the
SCA on the grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by the
Constitutional Court. This means that the SCA will only be the truly final
court for decisions relating to factual findings and ordinary appeals relating
to the application of non-contested legal rules to sets of facts. When a case
raises constitutional issues and does not deal with an issue on which the
Constitutional Court has exclusive jurisdiction, the case is first heard by the
High Court after which an appeal can be lodged with either the SCA or the
Constitutional Court directly.
When the constitutional matter involved is one that turns on the direct
application of the Constitution and does not involve the development of the
common law or customary law, considerations of cost and time may make it
desirable that the appeal be brought directly from the High Court to the
Constitutional Court, circumventing the SCA.125 The issue is different
when the SCA is asked to develop the common law. The Constitutional
Court will not ordinarily exercise its jurisdiction to develop the common
law without the SCA having considered the matter first.126 This is because
the SCA is viewed as having a broad understanding and insight into the
nature and scope of the common law. It will therefore arguably be able to
make a valuable contribution to any debate on whether and to what extent
the common law should be be developed.
In Masiya v Director of Public Prosecutions Pretoria (The State) and
Another, the Constitutional Court endorsed this important role of the SCA,
holding that any constitutional issues that involve, for example, the
development of the common law, should first be taken to the SCA because
of its jurisdiction and expertise in the common law.127 The same applies to
matters involving the indirect application of the Bill of Rights to the
interpretation of ordinary legislation. In such cases, the SCA would
normally be required to deal with a case before it is considered by the
Constitutional Court.128 As the Constitutional Court stated in Amod v
Multilateral Motor Vehicle Accidents Fund:
 When a constitutional matter is one which turns on the
direct application of the Constitution and which does not
involve the development of the common law,
considerations of costs and time may make it desirable
that the appeal be brought directly to this Court. But
when the constitutional matter involves the development
of the common law, the position is different. The
Supreme Court of Appeal has jurisdiction to develop the
common law in all matters including constitutional
matters. Because of the breadth of its jurisdiction and its
expertise in the common law, its views as to whether the
common law should or should not be developed in a
‘constitutional matter’ are of particular importance.129

6.2.2.3 High Courts

The Constitution confers wide-ranging jurisdiction on the various High
Courts in respect of constitutional matters as the High Courts may decide
any constitutional matter except those matters exclusively reserved for the
jurisdiction of the Constitutional Court or matters assigned by an Act of
Parliament to another court of a similar status as a High Court.130 This
means that most cases raising constitutional issues will first be heard in one
of the High Courts. However, as we noted above, where the High Court
declares invalid any provisions of an Act of Parliament or a provincial
legislature, such an order must be confirmed by the Constitutional Court
before that order has any force.131 In such cases, no appeal to the SCA is
required and no leave for appeal need be sought from the Constitutional
Court.
The situation is different where a High Court declines to find legislation
inconsistent with the Constitution and does not declare the impugned
provisions invalid. In this case, there will be no automatic referral to the
Constitutional Court and an appeal will have to be lodged by the party
seeking an order of invalidity.132
6.2.2.4 Magistrates’ courts
Magistrates’ courts do not have jurisdiction to hear constitutional matters.
Section 170 of the Constitution states that magistrates’ courts and all other
courts may decide any matter determined by an Act of Parliament, but a
court of a status lower than a High Court may not enquire into or rule on the
constitutionality of any legislation or any conduct by the President.
Section 110(1) of the Magistrates’ Courts Act 133 confirms that
magistrates’ courts cannot pronounce on the validity of any law or conduct
of the President. Section 110(2) states that when an allegation that a law or
conduct by the President is unconstitutional and invalid is raised in a
magistrates’ court, the magistrate in question must continue and decide the
matter on the assumption that the law or conduct in question is valid. If a
litigant wishes to pursue the question, he or she will have to approach the
High Court.

6.3 The independence of the superior

courts

6.3.1 Introduction
South Africa’s transition to an open and democratic society with a supreme
Constitution relied heavily on the establishment of an independent and
impartial judiciary. In the new system, the role of the judiciary was
dramatically expanded to ensure the protection of fundamental rights and to
ensure that government (as well as private institutions) remained within the
bounds of the law and honoured the constitutional commitment to openness
and democracy. Given the manner in which the judiciary was tainted during
apartheid, it may be surprising that this institution was entrusted with such a
crucial role in the transition to democracy, especially given the fact that in
terms of the political settlement, it was the only branch that remained
largely unchanged in the new democratic era.134 As we have pointed out,
when the new Constitution came into effect, the judiciary was still largely
dominated by white men and tainted by its role in the interpretation and
implementation of apartheid legislation.135
 Despite this history, when South Africa became a democracy, no judges
were relieved of their duties and the courts did not only retain their powers,
but were given extended powers far exceeding those they had enjoyed
under apartheid. The only change came in the form of the addition of the
Constitutional Court to the existing court structure and changes to the
manner in which judges are appointed. While the other courts and the
judges who staffed these courts remained in place, the interim Constitution
provided for the creation of a separate Constitutional Court to act as the
final arbiter of all constitutional matters.
Against this background, the creation of the Constitutional Court is a
significant development in South Africa’s transition, representing a first
step on the journey of transforming the legal system as a whole. It is
difficult to imagine that the judiciary would have been awarded such an
important role in the transition if a new Constitutional Court had not been
put in place. It is also difficult to imagine that the judiciary would have
been entrusted with the enforcement of a supreme Constitution in the
absence of a newly created Constitutional Court. The decision to create the
Constitutional Court was therefore partly a pragmatic political move and
partly a principled move aimed at increasing the legitimacy of the judiciary.
As the highest Court on constitutional matters and now also on other
matters of legal doctrine, it was important that the Court be seen to be
impartial and independent and not tainted by South Africa’s apartheid past.
Given the fact that the Court would also act as the ultimate guardian of the
impartiality and independence of all other courts,136 its creation could
therefore be said to be the first step in restoring the independence of the
South African judiciary. It also allowed the retention of the court structure
and made it easier for the drafters of the interim and 1996 Constitutions to
safeguard the tenure of judges appointed by the apartheid government
before 1994.

CRITICAL THINKING

Should South Africa have followed the Kenyan

model of vetting old-order judges?
When Kenya adopted a new Constitution in 2010, one of
the most vexing questions faced by its drafters was how to
deal with members of the judiciary, many of whom were
widely believed to be corrupt or politically compromised.
The Kenyan Constitution created a system of ‘vetting’ that
required all judges to be vetted by an independent board of
experts.137 Only those judges who passed the vetting
process retained their positions. Judges found to have
been implicated in corruption or who had not shown the
requisite diligence or impartiality required of members of an
independent judiciary were not retained. The process was
aimed at re-establishing the credibility and integrity of the
Kenyan judiciary.
As we have seen, a similar process was not followed in
South Africa and all judges appointed during the apartheid
era retained their positions. Instead, section 174(1) of the
South African Constitution merely states that ‘any
appropriately qualified woman or man who is a fit and
proper person’ may be appointed as a judicial officer while
section 174(2) requires that the need for the judiciary to
reflect broadly the racial and gender composition of South
Africa must be considered when appointing new judicial
officers. This decision ensured continuity in the judiciary
while envisaging that a gradual transformation of the
judiciary would take place through the appointment of new
judges as old-order judges retired.
The question is whether this choice was a wise one or
whether the Kenyan model would have been more
appropriate. Given the need for the judiciary to enjoy
legitimacy with the majority of South Africans, did the
South African model place too much emphasis on the
transformation of the judiciary through a gradual
appointment of new-order judges?
The independence of the judiciary is a distinctive feature of a constitutional
democracy. This independence refers to two ideals related to the
functioning of the courts as it pertains to ‘the relationship between the
courts and other state organs, the organisation of the relationship between
the courts themselves and the internal organisation of the courts as well as
aspects regarding the legal position of individual members of the
judiciary’.138
The first ideal is that individual judges should interpret and enforce the
law impartially and without bias. This requires individual judges to
approach a specific case with an open mind, without taking into account
their own personal views, ideological commitments or party political
beliefs. Impartiality is a complex notion. At its most extreme, impartiality
relates to the ability of each individual judge to apply the law without fear
or favour in accordance with the law, oath of office and with his or her own
sense of justice without submitting to any kind of pressure or being swayed
by his or her own views on political, social and economic matters.139 This
extreme notion of impartiality presupposes that a judge can banish from his
or her mind all personal views and prejudices and can interpret a legal text
and apply it to a set of facts without being swayed by political or other
personal commitments or culturally influenced values and assumptions.
However, it is not clear whether a judge can always do so, especially as far
as the interpretation of the rather open-ended and general language of the
Constitution is concerned. Often a text – especially a text like the
Constitution containing general language – will not have one objective
meaning and a judge may be required to interpret that text. Interpretation
requires a judge to refer to considerations outside the text itself to help give
meaning to that text. In the first decision handed down by the Constitutional
Court, Kentridge J signalled awareness of (but skirted) this issue when he
remarked:
I am well aware of the fallacy of supposing that general
language must have a single ‘objective’ meaning. Nor is
it easy to avoid the influence of one’s personal
intellectual and moral preconceptions. But it cannot be
 too strongly stressed that the Constitution does not mean
whatever we might wish it to mean.140
On the one hand, the Court acknowledged the fact that the language of the
Constitution does not necessarily yield one ‘objective’ meaning which the
Court can discover in a mechanistic fashion. It thus recognised the need to
refer to extra-textual factors – such as the South African context and history
and comparable foreign case law 141 – when interpreting the provisions of
the Constitution. On the other hand, the judgment resisted any move that
would implicate the personal views, political commitments and philosophy
of the judges themselves in the interpretative project in order to safeguard
the (symbolic) boundary between the work done by judges when they
interpret and apply the law and politics.142
In S v Makwanyane and Another,143 several of the justices asserted the
irrelevance of their personal, political or philosophical views when
interpreting the Constitution. Impartiality, they claimed, required judges to
ground their judgments in general human rights principles that are above
controversy and cannot be related to the personal views of a judge.144 At
the same time, many of the justices tentatively acknowledged the open-
ended nature of the language of the Constitution and the inherent need to
refer to ‘extra-legal’ values and texts, including the South African political
context and history, to justify their decisions.145 The Constitutional Court
has since often declared its commitment to the centrality of the
constitutional text in constitutional interpretation. The judges of this court
also acknowledge that any such interpretation can only be conducted with
the assistance of objective or objectively determinable criteria, or, at the
very least, criteria that are somehow distanced from the personal views,
opinions and political philosophy of the presiding judge.146 However, it is
an open question whether judges can truly empty their minds of all their
personal views and political commitments when they interpret the
Constitution and apply it to a specific set of facts.
Despite these difficulties, the ideal of impartial adjudication remains a
cornerstone of an independent judiciary which has often been affirmed by
the Constitutional Court. Thus, the Constitutional Court in President of the
Republic of South Africa and Others v South African Rugby Football Union
and Others – Judgment on recusal application (SARFU II) stated that:
It must be assumed that they can disabuse their minds of
any irrelevant personal beliefs or predispositions. They
must take into account the fact that they have a duty to
sit in any case in which they are not obliged to recuse
themselves. At the same time, it must never be forgotten
that an impartial judge is a fundamental prerequisite for
a fair trial and a judicial officer should not hesitate to
recuse herself or himself if there are reasonable grounds
on the part of a litigant for apprehending that the
judicial officer, for whatever reasons, was not or will not
be impartial.147

PAUSE FOR REFLECTION

The test for independence

In S and Others v Van Rooyen and Others (General
Council of the Bar of South Africa Intervening),148 the
Constitutional Court affirmed that judicial independence
requires that individual judges must be able to hear and
decide cases that come before them and that no outsider
should be able to interfere with the way a judge conducts
his or her case and makes his or her decision. This
requires judges to act impartially and, at an institutional
level, it requires structures to protect courts and judicial
officers against external interference.149
At the same time, it is important to note that there are
hierarchical differences between higher courts and lower
courts and that the requirements for independence could
be different for the two types of courts.150 Just because
they are treated differently does not mean that magistrates’
courts are not independent. Lower courts are entitled to
protection by higher courts if their independence is
threatened so the greater the protection that is given to
higher courts, the greater the protection is for lower courts.
Moreover, lower courts do not have the power to deal with
constitutional matters and the jurisdiction of the lower
courts set out in the Constitution is much more restricted
than that of the higher courts. This means that lower courts
do not need the same kind of safeguards as the higher
courts.
The test for independence is whether the court or
tribunal ‘from the objective standpoint of a reasonable and
informed person, will be perceived as enjoying the
essential conditions of independence’.151 It is important
that there is public confidence in the administration of
justice. Without that confidence, the system cannot
command the respect and acceptance that are essential to
its effective operation. It is, therefore, important that a
tribunal should be perceived as independent, as well as
impartial, and that the test for independence should include
that perception. This test is an objective one.152 The
apprehension of bias must be a reasonable one, held by
reasonable and right-minded persons, applying themselves
to the question and obtaining thereon the required
information. We must ask what would an informed person
conclude when viewing the matter realistically and
practically, and having thought the matter through. The
question is whether a reasonable, objective and informed
person would on the correct facts reasonably apprehend
that the judge has not or will not bring an impartial mind to
bear on the adjudication of the case, that is a mind open to
persuasion by the evidence and the submissions of
counsel.
It is important to note that this objective test must be
properly contextualised.153 The perception that is relevant
for such purposes is, however, a perception based on a
 balanced view of all the material information. We ask how
things appear to the well-informed, thoughtful and objective
observer, rather than the hypersensitive, cynical and
suspicious person. Bearing in mind the diversity of our
society, this cautionary injunction is of particular importance
in assessing institutional independence. The well-informed,
thoughtful and objective observer must be sensitive to the
country’s complex social realities, in touch with its evolving
patterns of constitutional development, and guided by the
Constitution, its values and the differentiation it makes
between different levels of courts.
The Van Rooyen judgment provides a general test to
establish whether a judge would be impartial and
independent. We contend that when considering whether
the appointments procedure and other structural
safeguards intended to safeguard the impartiality and
independence of judges are sufficient, this test must be
used.

Judges may not always be able to be impartial (in the sense of being able to
make decisions without taking into account factors that are legally
irrelevant) and may not be able to act without fear or favour if the
conditions under which the judicial function is exercised do not allow for
this and if the judiciary is not created as an independent institution that
functions separately from the other branches of government. Judges will
only be able to rule impartially and to be truly independent (from pressure
of both the state and private actors) if they are able to operate independently
from the other branches of government. They must be free from potential
direct and indirect pressures that could sway individual judges trying to act
in as impartial a manner as is humanly possible.
Structural safeguards must therefore be put in place to ensure that judges
are protected from the influence of and interference by other branches of
government (as well as from private business interests).154 This
requirement for structural safeguards to guarantee the impartiality and
independence of judges places an emphasis on the functional independence
of the judiciary within the larger political system and its functional
relationship with the other branches of government in South Africa. This
second aspect of independence relates to:
the degree to which the judicial institution has a distinct
and discrete role … detached from the interests of the
political system, the concerns of powerful social groups
or the desires of the general public … to regulate the
legality of state acts, enact justice and determine general
and constitutional and legal values.155
This means that judicial independence is not meaningful if judges cannot
exercise their judicial powers to check the arbitrary or unjust exercise of
power by political and social actors in society. The courts (and the judges
who staff the courts) must not be constrained by fear or by practical
difficulties from carrying out the ideal judicial role. This implies that
structures must be put in place to ensure that judges are insulated from
political and financial pressures and incentives.156 This fact was endorsed
by Chaskalson CJ in Van Rooyen where he argued that:
the constitutional protection of the core values of judicial
independence accorded to all courts by the South
African Constitution means that all courts are entitled to
and have the basic protection that is required … implicit
in this is recognition of the fact that the courts and their
structure, with the hierarchical differences between
higher courts and lower courts which then existed, are
considered by the Constitution to be independent … that
involves an independence in the relationship between the
courts and other arms of government.157
To determine whether courts enjoy sufficient structural independence,
several factors must be explored. We do so here with reference to the
superior courts. As we have seen, magistrates do not exercise constitutional
jurisdiction, which means we will leave aside the position of magistrates’
courts.

6.3.2 Appointment of judges

As noted above, before 1994, political considerations often played a
decisive role in the appointment of judges, thus potentially affecting the
impartiality and independence of judges. The drafters of the interim and
final Constitutions were faced with a difficult task in addressing this
problem.
On the one hand, in the new constitutional dispensation, judges are given
extensive additional powers. This includes the power to declare invalid acts
of the democratically elected Parliament and acts of the executive,
including the President. This means that the decisions of judges will often
have political consequences. Judges are therefore potential actors in the
political process as decisions of judges can have far-reaching political
consequences.158 The questions raised in chapter 2 about the counter-
majoritarian dilemma therefore loom large. It was therefore felt that the
appointment of judges could not be entirely insulated from the political
process. This would potentially delegitimise the judiciary and make it more
difficult for it to strike down legislation and the acts of members of the
executive. On the other hand, it would be undesirable to leave the
appointment of all judges in the hands of the President or other elected
politicians. This could potentially lead to a perception that party political
considerations are the sole criteria for the appointment of judges, thus
affecting the independence and impartiality of the judiciary.159
As a compromise, the Constitution created the Judicial Service
Commission (JSC) which is involved in the appointment of all superior
court judges (although this involvement differs depending on who is
appointed). The JSC was envisaged as playing a fundamental role in
ensuring the independence of the judiciary. The creation of the JSC
constituted the most radical break from the pre-constitutional procedure for
the appointment of judges.160 Section 178 of the Constitution as well as the
Judicial Service Commission (JSC) Act 161 established and regulates this
body.
 The composition of the JSC is of some importance. The ANC favoured
the establishment of a politically dominated body while, unsurprisingly, the
judges and legal profession favoured a body in which the legal community
would be in the majority.162 The composition of the JSC reflects a
compromise between these two positions. The JSC is normally composed of
23 members who are drawn from the judiciary, two branches (attorneys and
advocates) of the legal profession, the two Houses of the national
legislature, the executive, civil society and academia.163 The chair is taken
by the Chief Justice who also heads the Constitutional Court. Of the
23 members, 15 represent political interests, including the Minister of
Justice, the six members of the NA (three members from minority parties),
four members of the NCOP (representing the majority party) and four
presidential nominees.164
When the members of the JSC discuss matters relating to a specific High
Court, the Premier of the province together with the Judge President of the
province also sit on the Commission.165 Matters that affect a specific High
Court include, for example, decisions about the appointment of judges to
that High Court, as well as decisions about the possible disciplining or even
removal of a judge of that High Court from office. If the Premier of the
province is absent when the JSC makes a decision regarding either the
appointment or the disciplining of a judge serving in that province, the
decision of the JSC will be invalid.166
When vacancies occur in a court, the Chief Justice, as Chairperson of the
JSC, calls for nominations after which shortlisted candidates are publicly
interviewed. The JSC then makes recommendations to the President on
whom to appoint. While the JSC conducts its interviews in public – a
welcome departure from the secretive process followed during the apartheid
years – there is little transparency exhibited in the criteria used for
selection. The deliberations of the JSC are also kept confidential. This has
led to criticism on the basis that the JSC’s reasons for preferring one
candidate are not always clear.167 The JSC has also been criticised for the
manner in which it interviews candidates. It is said that rarely are questions
framed so as to afford a candidate an opportunity to explain his or her
approach to adjudication and conception of the important constitutional
values, and the candidate’s general judicial philosophy and commitment to
legal transformation.168
The role of the JSC in the appointment of judges differs depending on
the nature of the appointment to be made. The President as head of the
national executive has a relatively wide discretion when he or she appoints
the Chief Justice and the Deputy Chief Justice who both also serve on the
Constitutional Court. When making these appointments, the President, as
head of the national executive, appoints the person of his or her choice
after consulting the JSC and the leaders of parties represented in the
NA.169 The President must therefore consult the JSC, as well as the leaders
of opposition parties in the NA, before deciding on a candidate for
appointment, but the decision remains his or hers alone. Similarly, when
appointing the President and Deputy President of the SCA, the President, as
head of the national executive, appoints the person of his or her choice
after consulting the JSC (but in such cases the President need not consult
the leaders of parties represented in the NA).170
There has been some controversy around the nature of the consultation
process required although, as stated, it is clear that consultation has to occur
prior to the appointment. Ex post facto consultation after the President has
made a final decision on an appointment is not acceptable. No matter how
rigorous this consultation might have been, consultation requires more than
informing the parties to be consulted of a decision. Although the
Constitution does not define the notion of consultation, it has been argued
that ‘at least it must entail the good faith exchange of views, which must be
taken seriously’.171 However, it does not mean that the President must
follow the advice of those consulted.
The President, as head of the national executive, appoints the other
judges of the Constitutional Court after consulting the Chief Justice and the
leaders of parties represented in the NA.172 These appointments take place
in accordance with a more complicated procedure in which the JSC plays a
more important, but ultimately not decisive, role.
The JSC must prepare a list of nominees with three names more than the
number of appointments to be made and submit the list to the President.173
The President may make appointments from the list, but can also initially
refuse to appoint someone from the list provided by the JSC. However, if
the President refuses to appoint a judge from the list of names provided by
the JSC, he or she must provide the JSC with reasons for the decision. If
this happens, the JSC is required to supplement the list with further
nominees and the President must make the remaining appointments from
the supplemented list.174 This means if there is one vacancy in the
Constitutional Court, the JSC must send a list of four nominees to the
President. The President will then appoint one of the four nominees unless
he or she believes one or more of the nominees are not acceptable or that
the list should include a wider selection of names. For example, if a
vacancy occurs on the Constitutional Court and the JSC sends the names of
four white male candidates to the President, the President may refuse to
appoint one of the four nominees, asking for the list to be augmented with
black and female candidates. When making decisions about the
appointment of ordinary judges to the Constitutional Court, the JSC and the
President must keep in mind the requirement that at least four members of
the Constitutional Court must at any given time be persons who were
judges at the time they were appointed to the Constitutional Court.175
The JSC plays a decisive role in the appointment of all other judges to
the SCA, High Courts and other specialised courts. This includes the
various Judge Presidents who serve as leaders of each of the High Courts.
In the appointment of such ordinary judges, the JSC selects candidates to
fill any vacancies and the President is then required to appoint the judges
‘of all other courts on the advice of the Judicial Service Commission’.176
Unlike with the appointment of the Constitutional Court judges and the
leadership of the SCA and the Constitutional Court, in these cases the
President has no discretion and is required to appoint the candidates
selected by the JSC.
As we have seen, the JSC has not always been clear about the criteria
used for the selection of judges for appointment. A starting point for an
enquiry into the qualities a candidate should have for appointment to the
bench is the text of the Constitution which spells out the formal criteria for
selection as a judge.177 Two essential criteria appear in section 174(1) of
the Constitution. These criteria are that a person must be ‘appropriately
qualified’ and ‘a fit and proper person’ to be appointed as a judge. A further
criteria for a Constitutional Court judge is that the appointee must be a
South African citizen. These criteria can be regarded as essential or
necessary minimum criteria for appointment in the sense that a person who
is not appropriately qualified or who is not a fit and proper person may not
be appointed as a judicial officer.
However, the Constitution does not expressly detail the content of these
criteria and we are therefore required to interpret them. The JSC itself has
developed a set of criteria – over and above those mentioned in the
Constitution – that it takes into account when considering appointments to
the judiciary. These are as follows:
1. Is the proposed appointee a person of integrity?
2. Is the proposed appointee a person with the
necessary energy and motivation?
3. Is the proposed appointee a competent person? (a)
Technically competent (b) Capacity to give
expression to the values of the Constitution
4. Is the proposed appointee an experienced person?
(a) Technically experienced (b) Experienced in
regard to values and needs of the community
5. Does the proposed appointee possess appropriate
potential?
6. Symbolism. What message is given to the community
at large by a particular appointment? 178
Although somewhat vague, these criteria can serve as a starting point for a
broader enquiry into the attributes of an ideal judge in South Africa’s
constitutional democracy. One way of engaging with this difficult question
about the criteria for appointment is to take account of the characteristics of
the ideal judge. In addition to the criteria formulated by the JSC, it has been
argued that when considering the criteria for the appointment of the ideal
judge, we should consider the nature of the judicial function and the powers
that vest in judges.179 The Constitution requires that the judiciary should
be independent, must protect the Constitution and uphold rights, and must
apply the law impartially and without fear, favour or prejudice.180 Judicial
nominees should display the qualities associated with these requirements
for the judiciary. Chief Justice Mohamed made the following remarks about
the qualities of an ideal judge:
‘[S]ociety is … entitled to demand from Judges fidelity to
those qualities in the judicial temper which legitimize the
exercise of judicial power. Many and subtle are the
qualities which define that temper. Conspicuous among
them are scholarship, experience, dignity, rationality,
courage, forensic skill, capacity for articulation,
diligence, intellectual integrity and energy. More difficult
to articulate but arguably even more crucial to that
temper, is that quality called wisdom, enriched as it must
be by a substantial measure of humility, and by an
instinctive moral ability to distinguish right from wrong
and sometimes the more agonising ability to weigh two
rights or two wrongs against each other which comes
from the consciousness of our own imperfection.181
More recently, the late Chief Justice Chaskalson described the qualities
relevant to the appointment of a Chief Justice in the following terms:
Non-racism will not be an issue. Nor will commitment to
transformation. (All will be committed to that.) The
merits of the candidates, their qualities of leadership and
institution-building, their commitment to the values of
the Constitution, their independence and integrity, the
impact their appointment might have on the standing of
the Constitutional Court, and other relevant factors, will
no doubt be considered.182
We contend that the commitment of a candidate to the values enshrined in
the Constitution is pivotal. These values include respect for human dignity,
the achievement of equality and the advancement of human rights.183 It
has been argued that this commitment to the values in the Constitution be
encapsulated in the requirement that candidates must be committed to the
transformative goals of the Constitution. As Cowen argues:
Although the executive and legislative branches are the
primary architects of social change, judges – as we have
seen – are entrusted to protect rights and they have the
power to halt and guide government action. It would
thus seem legitimate for selectors to enquire whether
candidates for judicial selection are committed to the
process of social change as the Constitution mandates.
That may either entail assessing whether a judge might
seek to exercise judicial power with a view to preserving
the status quo (on the one hand) or by assuming the role
of primary architect of social change (on the other).
Either is arguably inimical to the values of the
Constitution. While assessing commitment to
constitutional values and the Constitution’s
transformative project is a legitimate exercise for
selectors, selectors must be cautious not to venture
beyond assessing values to assessing political
commitments. It might at times be a difficult line to
draw, but it is an important one if we are to preserve the
principle of judicial independence. As foreshadowed
above, an understanding of theories of adjudication
might helpfully inform selectors’ approach.184
Apart from the personal values of judicial candidates, the JSC is also
required to take into account another pivotal consideration, namely the need
to transform the judiciary better to reflect the racial and gender composition
of the broader South African community. These requirements are
encapsulated by section 174(2) of the Constitution which states that:
The need for the judiciary to reflect broadly the racial
and gender composition of South Africa must be
considered when judicial officers are appointed.
There are at least two reasons why this section is important. First, as
pointed out above, at the time of the transition to democracy the South
African judiciary was almost exclusively male and white, a situation that
potentially affects the credibility and legitimacy of the judiciary.185 Special
measures are therefore required to increase diversity on the bench to ensure
that the judiciary more fairly reflects the composition of the South African
public whom it serves. It would be difficult, if not impossible, for the
judiciary to retains its legitimacy in the eyes of the public if the
overwhelming majority of judges remain white and male.
Second, South Africa has an egregious history of 300 years of racial and
gender discrimination in society at large as well as in the legal profession,
and there remain ongoing racial and gender prejudices in society and in the
legal profession.186 This provision is important as it redresses these racial
and gender prejudices and provides a fair opportunity to groups who did not
enjoy the same privileges and opportunities for professional advancement
as white men did to be appointed to the bench. The requirement therefore
addresses possible lingering racial and gender discrimination in the
appointment of judges and is intended to ensure a fair appointment process.
In short, it is necessary to consider the racial and gender composition of the
bench to eradicate patterns of unfair discrimination in the appointment of
judges.187
Finally, it is argued that diversity on the bench can also improve the
quality of justice meted out by the courts. In a diverse society, judges from
different racial backgrounds and different genders and sexual orientations
will often bring different perspectives to bear. This can improve the quality
of jurisprudence and strengthen the intellectual output of the judiciary.188
As can be seen from Table 6.2 below,189 the JSC has done relatively well
in ensuring the creation of a non-racial judiciary. However, the same cannot
be said of gender representation as illustrated in Table 6.3.190 Similarly, the
commitment to anti-discrimination on the grounds of sexual orientation is
debatable.191
Table 6.2 Statistics of judges per race group
 Black African Coloured Indian White

74 (37%) 16 (8%) 19 (9%) 92 (46%)

Table 6.3 Statistics as per gender composition

Black Black Coloured Coloured Indian Indian White White

African African male female male female male female
male female

59 15 10 (5%) 6 (3%) 11 8 (4%) 79 13

(29,5%) (7,5%) (5,5%) (39%) (6,5%)

There is some disagreement about the exact manner in which section 174(2)
of the Constitution should be interpreted. Should considerations of racial
and gender representation trump any other considerations for appointment
as set out above, or should race and gender be important, but not always
decisive, factors in making decisions about judicial appointments? It
appears that from time to time the JSC commences its enquiry by an
examination of the racial and gender composition of the particular court and
the importance of the appointment in so far as the racial composition is
concerned. In such cases, representativity then becomes the key determinant
for an appointment.192 Whether this approach is correct is vigorously
debated in South Africa.193 Given our apartheid history, it is difficult to
argue against an appointment policy that would strive for a bench that is
composed primarily of judges of African descent. However, this needs to be
done without frustrating non-racialism and without perpetuating apartheid’s
offensive racial practices.194 The appointment policy also needs to ensure
the appointment of judges fully committed to the values enshrined in the
Constitution. How to strike this balance without impeding the rapid
transformation of the judiciary remains a vexing question.
The selection of judges by the JSC is subject to judicial review. The JSC
is a body created by the Constitution. As such, the JSC exercises public
power and is hence controlled by what is prescribed in the Constitution and
the law. In the case of Judicial Service Commission and Another v Cape
Bar Council and Another,195 the SCA affirmed that the decisions of the
JSC – including decisions about the appointment or non-appointment of
judges – could be reviewed by a court, based on the principle of legality and
rationality.196
The judgment sets out the manner in which the members of the JSC
ought to – but do not always – arrive at decisions about the appointment of
judges. Apart from the requirement that the JSC can only make a valid
decision if it is properly constituted,197 the SCA also found that the JSC
was obliged to provide reasons for a decision not to appoint a candidate. As
the JSC is under a constitutional duty to exercise its powers in a way that is
not irrational or arbitrary, and as the JSC is an organ of state, it is bound to
the values of transparency and accountability. Without giving reasons, it
would not be possible for the JSC to be held accountable and to act in a
transparent manner.198 The JSC is, therefore, as a general rule, obliged to
give reasons for its decision not to recommend a particular candidate if
properly called on to do so. Such reasons may not be restricted to a
statement that the unsuccessful candidate failed to secure enough votes as
this would amount to no reason at all.199 However, the JSC is not under an
obligation to give reasons under all circumstances for each and every one of
the myriad potential decisions it has to take. It is, however, as a matter of
general principle, obliged to give reasons for its decision not to appoint a
candidate.

CRITICAL THINKING

How being black or female ought to influence the

selection process in a specific case
In discussing the way in which section 174(2) of the
Constitution should be applied, Cowen suggests how being
black or female ought to influence the selection process in
a specific case, arguing that:
The easy case arises where two candidates who are similarly well-
qualified are being considered for appointment. Subject to any
special needs of a court, the appointment of a candidate to
enhance racial or gender representativity would seem appropriate.
The difficult case arises where two qualified candidates are being
considered but the candidate who will not enhance racial or gender
representativity is appreciably better qualified in an important
respect. In that case, the consideration of the need for racial and
gender representativity on the bench requires careful evaluation
and cannot be the only relevant consideration. Importantly, whether
the better qualified candidate should be appointed may depend on
what qualities separate the two candidates and whether the
qualities that stand out in the better qualified candidate are
qualities that are needed to ensure a bench that is best able to
perform the adjudicative functions entrusted to the judiciary by the
Constitution. That evaluation cannot focus myopically on the
relative merits of two candidates: rather, selectors require an
appreciation of the overall needs of the judiciary and the court in
question at the relevant time.

If that evaluation is to be conducted honestly and constructively,

there is a real need to remove racist and sexist discourse from our
discussions and to focus squarely on the detailed criteria for
judicial selection. There is similarly a real need to be honest about
mistakes we may have made in the past. The mistakes are many
and will include engaging in discourse that assumes that more
meritorious white candidates are being overlooked in favour of less
meritorious black or female candidates. But they also include
appointing judges for political favour or in circumstances where
qualifications or fitness and propriety are in question. That much
we know, at least, from our apartheid history.

In this regard, many express the view that being black, or being a
woman, constitutes a valid criterion for judicial selection. This
approach is misleading because the criteria for judicial selection
are that a person be appropriately qualified and a fit and proper
person. If a person is not appropriately qualified and is not a fit and
proper person, it is irrelevant whether they are black or female.
That person does not qualify for judicial office. It is also misleading
because it encourages the thinking that being black or female
somehow enhances a candidate’s fitness and propriety for office.
Yet, in a society committed to non-racialism and non-sexism, we
should be vigilant not to assume that any qualities relevant to
judging flow from membership of a group. As argued above in the
context of the Sotomayor controversy, it may be that because a
candidate is black or female, and has experienced discrimination,
their capacity for empathy and compassion is enhanced, but that
will depend on the person in question and does not flow
automatically from their membership of a group. Similarly, a
 person’s commitment to constitutional values or qualification to
adjudicate questions of constitutional law does not flow from their
race or gender, but from their humanity, what skills and experience
they possess and how they have chosen to live their lives.

Finally, we ought not be too quick to assume that the legitimacy of

the bench will be best enhanced if race and gender representativity
is accelerated. We must obviously aim to meet the objective of
racial and gender representativity with due expedition and treat it
with priority, because the judiciary’s legitimacy depends on it. But
its legitimacy will ultimately depend on how well the judiciary is
able to perform the functions the Constitution entrusts to it.200

6.3.3 The judicial oath of office

Before a South African judge takes office, he or she swears or affirms:
(to) be faithful to the Republic of South Africa, (to)
uphold and protect the Constitution and the human
rights entrenched in it, and (to) administer justice to all
persons alike without fear, favour or prejudice, in
accordance with the Constitution and the law.201
This oath requires each judge to decide a case on its legal merits in
accordance with the Constitution and the law and without showing either
favour or disfavour to any of the litigants. The oath therefore requires
judges to promise that they will, as far as it is humanly possible, always act
impartially and uphold the law.202 The requirement represents a further
formal safeguard of the impartiality of judges and the independence of the
judiciary.

6.3.4 Security of tenure

The independence of judges depends, in part, on a guarantee that judges
will not be dismissed or face the threat of dismissal from office for making
a decision adverse to the interest of the government of the day or of
powerful business or other societal interests aligned with the government.
This is why the security of tenure of judges is entrenched in the
Constitution.203 There are two aspects to this guarantee of security of
tenure. First, judges are appointed for a fixed term or until they reach a
fixed age of retirement. They cannot be forced to retire before their term
ends or before they reach the prescribed age of retirement. Second, judges
can only be removed from office before the end of their tenure after
following a special procedure that entrenches their position. We deal with
these two aspects in turn.
Section 176 of the Constitution states that Constitutional Court judges
hold office for a non-renewable term of 12 years or until they attain the age
of 70, whichever occurs first except where an Act of Parliament extends the
term of office of a Constitutional Court judge.204 Section 4 of the Judges’
Remuneration and Conditions of Employment Act 205 extends this term to
15 years of active service. Active service includes service performed as a
judge on any other court. However, regardless of the period of active
service of a Constitutional Court judge, the judge must retire when he or
she reaches the age of 75. This means that a Constitutional Court judge who
has been in active service on a High Court or on the SCA for three or more
years, will usually serve a fixed term of 12 years on the Constitutional
Court. This is unless the judge turns 75 before completing the 12-year term,
in which case the judge will retire when reaching the age of 75. However, a
judge who has not served on any other court before appointment to the
Constitutional Court will normally serve a fixed term of 15 years on that
court, provided, again, that he or she does not reach the age of 75 before the
end of this 15-year period.
The provision in section 176 of the Constitution that an Act of
Parliament could extend the term of office of a Constitutional Court judge
was effected by an amendment of the Constitution in 2001. The provisions
of the Judges’ Remuneration and Conditions of Employment Act then
purported to give effect to the provisions of section 176. These provisions
were subjected to sustained criticism 206 on the basis that they watered
down the security of tenure provisions and could influence the
independence of the judiciary.
This criticism was even more sustained in relation to the position of the
Chief Justice and the President of the SCA. Section 8 of the Judges’
Remuneration and Conditions of Employment Act authorised the President
to request a Chief Justice or the President of the SCA at the end of their
term of service ‘to continue to perform active service for a period
determined by the President’ on the condition that this extension could not
go beyond the date on which the Chief Justice or President of the SCA
turned 75 years of age. Section 8 therefore granted the power to extend the
term of office of the Chief Justice and the President of the SCA to the
President who could extend the term for any period and for as many times
as he or she wished. The section was ostensibly passed in accordance with
the amended section 176(1) of the Constitution, which, as we have seen,
authorises Parliament to extend the term of office of a Constitutional Court
judge.
When President Jacob Zuma attempted to extend the term of office of
then Chief Justice Sandile Ngcobo, relying on section 8 of the Act, the
constitutionality of section 8 was challenged in the Constitutional Court. In
Justice Alliance of South Africa v President of Republic of South Africa and
Others, Freedom Under Law v President of Republic of South Africa and
Others, Centre for Applied Legal Studies and Another v President of
Republic of South Africa and Others,207 the Court declared invalid
section 8(a) of the Judges’ Remuneration and Conditions of Employment
Act. The judgment affirmed and further elaborated on constitutional law
principles relating to the independence of the judiciary, the rule of law and
the separation of powers. The Court pointed out that section 8(a) was
constitutionally problematic because it conferred on the President an
executive discretion to decide whether to request a Chief Justice to continue
to perform active service and, if he or she agrees, to set the period of the
extension. The term of office could be extended if the President decided so
and the Chief Justice acceded to the request. Deciding on the period of the
extension was in the exclusive discretion of the President and was
unfettered in the sense that the President was not required to consult anyone
before extending the term of the Chief Justice.208
What made section 8(a) more problematic was that in its purported
delegation, Parliament had not sought to furnish any, let alone adequate,
guidelines for the exercise of the discretion by the President. The provision
thus usurped the legislative power granted only to Parliament by
section 176 of the Constitution and therefore constitutes an unlawful
delegation of legislative power to the President.209 In a constitutional
democracy in which the separation of powers doctrine is respected,
Parliament may not ordinarily delegate its essential legislative functions to
the executive. Although section 176(1) of the Constitution creates an
exception to the requirement that a term of a Constitutional Court judge is
fixed, that authority, however, vests in Parliament and nowhere else. The
Court noted that section 176(1) does not merely bestow a legislative power
on Parliament, but by doing so also marks out Parliament’s significant role
in the separation of powers and protection of judicial independence.210 As
the Court stated:
Accordingly, section 8(a) violates the principle of judicial
independence. This kind of open-ended discretion may
raise a reasonable apprehension or perception that the
independence of the Chief Justice and by corollary the
judiciary may be undermined by external interference of
the Executive. The truth may be different, but it matters
not. What matters is that the judiciary must be seen to
be free from external interference.211
Focusing on the importance of a fixed term of office for judges to protect
and safeguard the independence and impartiality of the judiciary, the Court
stated:
It is well established on both foreign and local authority
that a non-renewable term of office is a prime feature of
independence. Indeed, non-renewability is the bedrock of
security of tenure and a dyke against judicial favour in
passing judgment. Section 176(1) gives strong warrant to
this principle in providing that a Constitutional Court
judge holds office for a non-renewable term. Non-
renewability fosters public confidence in the institution
of the judiciary as a whole, since its members function
 with neither threat that their terms will not be renewed
nor any inducement to seek to secure renewal.212
However, the Constitutional Court went further, finding that it would be
impermissible for the legislature to single out the office of the Chief Justice
for an extension of his or her term of office. Despite section 176(1),
Parliament was therefore not authorised to pass legislation that would
extend the term of office of only the Chief Justice:
In approaching this question it must be borne in mind
that the extension of a term of office, particularly one
conferred by the Executive or by Parliament, may be
seen as a benefit. The judge or judges upon whom the
benefit is conferred may be seen as favoured by it. While
it is true, as counsel for the President emphasised, that
the possibility of far-fetched perceptions should not
dominate the interpretive process, it is not unreasonable
for the public to assume that extension may operate as a
favour that may influence those judges seeking it. The
power of extension in section 176(1) must therefore, on
general principle, be construed so far as possible to
minimise the risk that its conferral could be seen as
impairing the precious-won institutional attribute of
impartiality and the public confidence that goes with
it.213
Although the Constitution specifically creates the office of the Chief Justice
and that of Deputy Chief Justice, this does not allow for an extension of his
or her term only. This is so because once appointed, the Chief Justice and
Deputy Chief Justice take their place alongside nine other judges in
constituting the membership of this Court. The Constitution provides that a
matter before the Constitutional Court:
must be heard by at least eight judges … Their high
office and the extra-judicial duties they may be called
upon to perform add nothing to the tally. … Nor does
 their office count when this Court determines the cases
and the matters before it. Their views count and their
voices are heard equally with the respect and authority
accorded every member of this Court.214
Section 176(1) of the Constitution therefore did not allow Parliament to
single out any individual Constitutional Court judge by name. It is also
plain that no individual may be singled out on the basis of an irrelevant
individual characteristic or feature. It follows that the term ‘a Constitutional
Court judge’ in section 176(1) does not permit singling out any one
Constitutional Court judge on the basis of his or her individual identity or
position in the Court. It also follows that in exercising the power to extend
the term of office of a Constitutional Court judge, Parliament may not
single out the Chief Justice.
It is important to note that the Court distinguished between section 8(a)
and section 4 of the Judges’ Remuneration and Conditions of Employment
Act. It pointed out the amendment to section 8 differed from section 4 of
the Act as section 4:
does not allow any member of the category of
Constitutional Court judge to be singled out, whether on
the basis of individual characteristic, idiosyncratic
feature or the incumbency of office. Age is an indifferent
criterion that may be applied in extending the term of
office of a Constitutional Court judge. Age is an attribute
that everyone attains. Previous judicial service is another
criterion that may be indifferently applied to all the
judges of this Court. The Act provides that a
Constitutional Court judge whose 12-year term of office
expires before he or she has completed 15 years’ ‘active
service’ as a judge must, subject to attaining the age of
75, serve for 15 years in this Court.215
Ordinary judges (in other words, judges who do not serve on the
Constitutional Court) hold office until they are discharged from active
service in terms of an Act of Parliament.216 Section 3(2) of the Judges’
Remuneration and Conditions of Employment Act regulates this matter.
This section states that other judges will normally hold office until the date
on which they attain the age of 70 years if they have on that date completed
a period of active service of not less than 10 years. If they have on that date
not yet completed a period of 10 years’ active service, the term of office
will end after serving for 10 years. However, judges have a further
discretion provided by section 4(4) of the Act. This section allows a judge
who on attaining the age of 70 years has not yet completed 15 years’ active
service to continue to perform active service to the date on which he or she
completes a period of 15 years’ active service or attains the age of 75 years,
whichever occurs first.
The requirement that the security of tenure of judges should be
guaranteed has another important consequence: judges should only be
removed from office as a last resort and then only for serious and
objectively determinable reasons. Thus, section 177 of the Constitution
determines that a judge may only be removed from office if the JSC finds
that the judge:
• suffers from an incapacity
• is grossly incompetent
• is guilty of gross misconduct.
Once the JSC has made such a finding, this is not the end of the matter as
the judge in question will only be removed from office if the NA calls for
that judge to be removed by a resolution adopted with a supporting vote of
at least two-thirds of its members. Once the NA has passed such a
resolution, the President must remove the judge from office. The President
has the power, on the advice of the JSC, to suspend a judge who is the
subject of an investigation by the JSC to remove him or her from office.217
Section 177 of the Constitution ensures that a judge cannot be arbitrarily
removed from the bench for political or other reasons unrelated to the
ability of that judge to perform his or her functions or the integrity of the
judge.
The JSC Act determines the procedure to be followed by the JSC when
dealing with complaints against judges. A Judicial Conduct Committee (a
subcommittee of the JSC) is required to receive, consider and deal with
complaints against judges. The Judicial Conduct Committee comprises the
Chief Justice, who is the Chairperson of the Committee, the Deputy Chief
Justice and four judges, at least two of whom must be women, designated
by the Chief Justice in consultation with the Minister.218 The Committee
can deal with both serious complaints, which may lead to the dismissal of a
judge, or less serious complaints which will not lead to the dismissal of a
judge. However, a lesser complaint can also be referred to the head of the
court in which the judge complained of serves.219
A complaint must be dismissed if it is not of a serious nature or is solely
related to the merits of a judgment or order, if it is frivolous or lacking in
substance, or if it is hypothetical.220 If the Chairperson of the Conduct
Committee is satisfied that in the event of a valid complaint being
established, it is likely to lead to a finding by the JSC that the judge being
accused suffers from an incapacity, is grossly incompetent or is guilty of
gross misconduct, the Chairperson must refer the complaint to the Conduct
Committee. The Committee must then consider whether it should
recommend to the JSC that the complaint should be investigated and
reported on by a Judicial Conduct Tribunal. The Committee must also
consider whether the complaint, if established, will prima facie indicate
incapacity, gross incompetence or gross misconduct by the judge. Non-
impeachable complaints can be dealt with by the Committee without
referral to the Tribunal which will only be appointed in the case of
impeachable offences.221
Impeachable offences must be referred to a Judicial Conduct Tribunal,
which consists of two judges, one of whom must be designated by the Chief
Justice as the Tribunal President, and one layperson.222 The Tribunal will
then, in effect, try the judge against whom a serious complaint had been
lodged: witnesses will be called and those making the allegations as well as
the judge being accused will be cross-examined. The Tribunal will then
make the appropriate findings of fact, including the cogency and sufficiency
of the evidence and the demeanour and credibility of any witness, as well as
its findings as to the merits of the allegations in question. It will then submit
a report to the JSC.223 The JSC will decide whether to recommend
impeachment of the judge to the NA. When considering a complaint against
a judge, the JSC is obliged to decide the matter.
CRITICAL THINKING

The duty of the JSC when considering

complaints against judges
In the case of Freedom Under Law v Acting Chairperson:
Judicial Service Commission and Others,224 the SCA
declared invalid a decision of the JSC to dismiss a
complaint lodged by the then judges of the Constitutional
Court against Judge President John Hlophe. The SCA
found that the JSC was required to investigate serious
complaints and could not abdicate its constitutional duty to
investigate the complaint properly. Such an abdication in
this case was therefore unlawful and invalid.
The JSC had previously found that the evidence in
respect of the complaint by the Constitutional Court against
Judge President John Hlophe did not justify a finding that
the Judge President was guilty of gross misconduct and
that the matter accordingly be ‘treated as finalised’.225 The
JSC had assumed that because there were two versions of
what happened – one presented by Hlophe and another
presented by Justices Jafta and Nkabinde of the
Constitutional Court – that cross-examination of the
witnesses who presented these conflicting versions would
serve no purpose. Hence, no further and proper
investigation was required. The JSC had thus decided that
because there were conflicting versions of events, they
would not judge the merits of the case at all. The SCA
rejected this argument, stating:
It cannot be in the interests of the judiciary, the legal system, the
country or the public to sweep the allegation under the carpet
because it is being denied by the accused judge, or because an
investigation will be expensive, or because the matter has
continued for a long time.226
 The SCA therefore found that the decision not to proceed
with a full investigation was irrational.227
The problem for the JSC was that in the absence of
cross-examination of the witnesses, its finding and reasons
for the finding could not be justified. As the SCA pointed
out, the JSC had applied the criminal standard applicable
at the end of a criminal trial, namely proof beyond
reasonable doubt, to dismiss the complaint at a stage
when neither of the conflicting versions of the judges
accusing Judge President Hlophe on the one hand and
Hlophe JP on the other hand had been tested by cross-
examination. Although the finding that it could not reject
Hlophe JP’s version was quite correct, this did not mean
that no cross-examination was required:
By disallowing cross-examination that result was made inevitable.
It would have been highly irregular to reject his evidence without
having given him an opportunity to cross-examine his accusers.
Utilising this procedure for the final resolution of a complaint of
misconduct by a judge will always lead to a dismissal of the
dispute where the conduct alleged by the accuser is disputed by
the judge because the judge’s version can never be rejected
without having given him an opportunity to cross-examine his
accusers. The procedure adopted was therefore not appropriate for
the final determination of the complaint.228

This case, read with the other SCA cases dealing with the
procedure to be followed by the JSC when appointing and
disciplining judges, suggests that the JSC does not only
have an obligation to act rationally when it makes these
decisions. It also has a duty to make some kind of decision
and cannot decide not to make a decision at all in cases
where a decision is required.

6.3.5 Financial security

The independence of the judiciary can be eroded if judges are not secure in
making decisions without fear, favour or prejudice. This security can be
threatened if judges are not financially secure and if they believe they can
be ‘punished’ (or if, in fact, they can be punished) for making an unpopular
decision by having their salaries and other benefits reduced by the state. It
is for this reason that the Constitution states that the ‘salaries, allowances
and benefits of judges may not be reduced’.229 The conditions of service of
judges are regulated by the Judges’ Remuneration and Conditions of
Employment Act. The Act provides that a judge shall be paid a monthly
salary to be determined each year by the President by proclamation after
taking into consideration the recommendations of the Independent
Commission for the Remuneration of Public Office-bearers.230 A
proclamation setting out judges’ salaries must be submitted to Parliament
after its publication. Parliament may reject the proclamation or any
provision of it, the effect of which will be to make the proclamation invalid.
To emphasise that judges are not employees of the executive, judge’s
salaries are not included in the allocation of revenue to any government
department, but are paid directly from the state revenue fund.231

6.3.6 Limitation of civil liability

By its very nature, the job of a judge is to make judgments about people.
Such judgments – about the credibility of a witness or the guilt of an
accused – can fundamentally affect the status and dignity of an individual.
Such individuals wrongly impugned by a judge may therefore wish to revert
to the law of defamation to claim damages from a judge who has impugned
his or her reputation.
However, to carry out their functions, judges must be secure in the
knowledge that they will not incur civil liability for what they say or do in
the course of carrying out their duties.232 Thus, in Penrice v
Dickenson,233 the Court held that delictual damages will not be awarded
against a judicial officer, whether a judge or a magistrate, unless it is shown
that he or she acted with malice. This common law rule was applied in May
v Udwin 234 where it was held that a judicial officer can raise the defence
of qualified privilege to a defamation action.
 A judge or magistrate will therefore be liable for defamatory statements
only if it can be proved that he or she made those statements out of personal
spite, ill will or an improper, unlawful or ulterior motive. The reason for
this rule is obvious. The judicial task would be made impossible if a judge
could be sued for defamation every time in the course of giving judgment
he or she expressed unfavourable views about a litigant or made an adverse
finding regarding the credibility of a witness.235 Without protection from
defamation suits, judges could be exposed to endless litigation by
disgruntled litigants, witnesses or accused persons.
Before the adoption of the Superior Courts Act,236 section 25(1) of the
Supreme Court Act afforded Supreme Court judges a further protection
against defamation claims. The section prohibited the issuing of a civil
summons or subpoena against a judge without the permission of the court
out of which the process was to be served.237 Currie and de Waal speculate
that the reason why it was thought that this permission was needed may
have been to protect judges from becoming the victims of frivolous
proceedings or to prevent the disruption of the work of the court.238
A similar process was required in the case of judges of the Constitutional
Court. The Supreme Court Act prohibited any civil proceedings from being
instituted against or subpoena issued for the Chief Justice or other judges of
the Constitutional Court without the consent of the Chief Justice. Again,
where consent had been obtained, the date on which the judge was to
appear had to be determined in consultation with the Chief Justice (in
matters involving the President) or the President of the Court (in matters
involving the other judges).239 Similar provisions did not find their way
into the Superior Courts Act.

6.4 Independence of the lower courts and

traditional courts

6.4.1 The lower courts under the interim Constitution

Before 1993, the magistrates’ courts in South Africa enjoyed little if any
independence. In fact, judicial officers in lower courts had the status of
ordinary public servants.240 Magistrates and regional magistrates were
employees of the Department of Justice and were usually promoted from
the ranks of public prosecutors once they had passed the relevant
examinations.241 As Currie and De Waal point out, like other public
servants, magistrates were subject to the disciplinary measures contained in
the Public Service Act.242 Following a departmental enquiry, they could be
demoted or discharged on grounds of misconduct or inefficiency.243 These
factors exposed magistrates to being influenced by the executive and cast
suspicion on their independence. This close relationship between
magistrates and the executive was seen as incompatible with the doctrine of
separation of powers.
The 1983 Hoexter Commission of Inquiry recommended legislative steps
designed to shore up the independence of magistrates and to reduce the
possibility of influence or control by the executive.244 The independence
of the magistrates’ courts was then enhanced by the adoption in 1993 by the
last apartheid Parliament of the Magistrates Act.245 The Act removed
magistrates from the ambit of the public service and created a Magistrates
Commission to deal with the conditions of service, appointment and
dismissal of magistrates. The Magistrates Act was passed prior to the
adoption of the interim Constitution ‘at a time when the great majority of
the population of this country had no representation in Parliament’ and
when the ‘power to appoint judges and magistrates was then vested in the
executive’.246 The Magistrates Act gave the Magistrates Commission an
advisory function in the appointment of magistrates, but there was no
obligation on the executive to consult any person or institution in respect of
the appointment of judges. The Magistrates Commission was not a
representative body and all but two of its members were designated by
bodies controlled by white judicial officers and lawyers. The existence and
functions of the Magistrates Commission were then constitutionalised by
section 109 of the interim Constitution. According to section 109, the
Commission had ‘to ensure that the appointment, promotion, transfer or
dismissal of, or disciplinary steps against magistrates take place without
favour or prejudice … and to ensure that no victimization or improper
influencing of magistrates occurs’.

6.4.2 Independence of the lower courts under the 1996

Constitution
The 1996 Constitution vests judicial authority in the courts which,
according to section 166(d), includes the magistrates’ courts. Section 174(7)
of the Constitution governs the appointment of magistrates. This section
requires an Act of Parliament to be passed to ‘ensure that the appointment,
promotion, transfer or dismissal of, or disciplinary steps against, these
judicial officers take place without favour or prejudice’. The 1996
Constitution does not explicitly mention that a Magistrates Commission
should fulfil this task.
During the certification proceedings objection was made to the fact that
there was no provision in the 1996 Constitution for a similar Magistrates
Commission. There were also no express provisions governing the
appointment, term of office, remuneration and removal from office of
magistrates. The Constitutional Court held that it was sufficient that
section 165 guaranteed the independence of the courts. The Act of
Parliament governing the appointment of magistrates referred to in
section 174(7) is subject to constitutional control. If the Act undermines the
independence and impartiality of the courts specifically protected by
section 165, it will not be valid.247
In 1996, changes were made to the composition of the Magistrates
Commission. The change in the composition of the Magistrates
Commission effected by the 1996 amendment brought the composition of
that Commission closer to that of the JSC.248 The Constitution itself
recognises the JSC as a body appropriately constituted for the purpose of
matters concerned with the appointment and impeachment of judges.249
The Constitutional Court held in the Van Rooyen case that the changes
made in 1996 are consistent with and reflect the change that has taken place
in our country since 1993 – a transformation required by the Constitution
itself:
 The Magistrates Commission is now more broadly
representative of South African society as a whole. This
was important particularly at this stage of our history.
The overwhelming majority of the population is black
and at least half the population is female. Yet the great
majority of the legal profession and senior judicial
officers are still white and male. In the light of our
history and the commitment made in the Constitution to
transform our society, these racial and gender disparities
cannot be ignored. The recomposition of the Magistrates
Commission viewed thus by an objective observer, could
not fairly be seen as an attempt to exert executive control
over the magistracy. There was a pressing need for the
racial and gender disparities within the Commission to
be changed, and for the Commission to be re-composed
so as to become more representative of South African
society. The changes made facilitated this, and that
would have been understood by an objective observer
taking a balanced view of all the relevant
circumstances.250
Currently, the Commission consists of a judge, six magistrates, four legal
practitioners, a teacher of law, eight Members of Parliament and five
nominees of the executive. In addition, the Minister and the head of Justice
College are members of the Commission.251 According to the
Constitutional Court:
[o]n its face this is a diverse body of persons, nearly half
of whom consist of members of the judiciary and the
legal profession. The rest are nominees of Parliament
and the executive. To some extent this is similar to the
composition of the Judicial Service Commission which
has a central role in the appointment of judges and the
composition of which is dealt with in the Constitution
itself.252
In practice, the Commission does not conduct interviews but compiles a list
of appointees who have undergone the required training and passed the
examinations. The appointees are drawn from the ranks of public
prosecutors. The same Commission that determines the salaries of judges
also determines the remuneration of magistrates.

6.4.3 Independence of traditional courts

As the South African Law Commission (SALC) pointed out in its Report on
Traditional Courts,253 the administration of justice in rural South Africa is
predominantly carried out by chiefs’ courts. These courts administer justice
largely on the basis of customary law and on the basis of authority granted
by several apartheid-era laws.254 Traditional courts gain their authority
from sections 12 and 20 of the Black Administration Act (BAA),255 read
with section 16 of Schedule 6 of the Constitution.256 This is seemingly
authorised by Chapter 12 of the Constitution which requires the law to
recognise the ‘institution, status and role of traditional leadership according
to customary law’, but subject to other provisions in the Constitution.257
The Constitution allows national legislation further to provide for this
role.258 It is surprising that traditional courts are still regulated by the BAA
while most other provisions of this Act have been scrapped. The BAA has
been described by the Constitutional Court as ‘an egregious apartheid law
which anachronistically has survived our transition to a non-racial
democracy’.259
The relevant sections of the BAA that apply here and are still in
operation empower the Minister to confer civil and criminal jurisdiction on
chiefs, headmen or chiefs’ deputies. The BAA does not prescribe any
hierarchy of customary courts and neither does it provide for appeals from
the headman’s court to a chief’s court.260 According to the SALC, in many
traditional communities the practice is that claims or complaints start at the
level of the family council. If a matter is not resolved at that level, it is
taken to the headman who, together with his advisers, attempts to dispose of
the matter. If it is still not resolved, the matter is taken on appeal to the
chief. It is from the chief’s court that the case is normally appealed to the
magistrates’ court.261 As we have noted in a previous chapter, chiefs are
not elected but obtain their positions on a hereditary basis.262
The BAA does not prescribe the composition of the chiefs’ or customary
courts. The Act merely provides for the conferment of jurisdiction on a
chief, headman or chief’s deputy to hear civil matters and to try certain
criminal matters.263 However, under customary law, the court formally
consists of the chief and his councillors or the headman and his advisers
(the chief or headman will very seldom be female). In most cases, the chief
will not normally preside over the proceedings. Instead, a trusted councillor
will be appointed to preside.264 This situation differs from community to
community. The flexible nature of customary law, along with its ability to
develop to adapt to changing circumstances, means that it is not possible to
identify a unified system according to which traditional courts operate.
However, the Centre for Law and Society summarises the nature of
traditional courts in South Africa as follows:
Customary courts are essentially non-professional
institutions. Rather, they are community forums in which
mature members of the community participate. The
notion of a presiding officer who acts as a judge and is
the single decision-maker has no real place in these
forums as they are shared discussion spaces in which all
present can participate in the hearing, questioning,
deliberation and decision. Also, the variability between
different communities (even within a single cultural
group or locality) in the extent of the chief’s
participation in the court – ranging from non-
participation to active participation – makes the notion
of presiding officer an untenable notion to adopt and
impose on all communities. The notion of a presiding
officer, derived from western court systems, is misleading
in the context of these forums. Several studies detail that,
even where the chief formulates and pronounces the
decision in a customary court, he is bound by what the
 council and/or community has found in hearing that
case.265
Because traditional leaders are also involved in the exercise of legislative
and executive powers, it has been argued that traditional courts cannot be
independent as required by the Constitution. However, different High
Courts have reached different conclusions on this matter 266 and the
Constitutional Court has not given its opinion on whether a system of
traditional courts can be squared with the requirements of judicial
independence.
We contend that it would be difficult to answer this question in the
abstract as different customary courts operate differently and deal
differently with disputes. Bennett also argues that a distinction should be
drawn between traditional courts dealing with criminal matters and
traditional courts dealing with civil matters. The requirements for
independence would not arise as sharply in civil matters as in criminal
matters where the presiding officer could also be the complainant,
prosecutor and judge. Moreover, the question of whether traditional courts
are compatible with the Constitution should be weighed against
considerations of access to justice as those traditional courts that work well,
provide immediate and effective access to justice for many citizens living in
rural areas. Thus, argues Bennett, traditional courts should retain their civil
jurisdiction, while not being awarded jurisdiction to try criminal
matters.267

6.5 The National Prosecuting Authority

The 1996 Constitution established a single National Prosecuting Authority
(NPA) for South Africa.268 The NPA has the power to institute criminal
proceedings on behalf of the state and to carry out any necessary functions
incidental to instituting criminal proceedings.269 One of the most vexing
constitutional law issues is the question of where the NPA fits into the
structure of government within the system of separation of powers. It is
neither part of the legislature or the executive nor is it part of the judiciary.
Yet, it is supposed to play a pivotal role in the effective and impartial
functioning of the criminal justice system. Section 179 of the Constitution
establishes the framework within which the NPA should operate, but
requires the details of its structure to be provided for in an Act of
Parliament.
The constitutional framework provides for a National Director of Public
Prosecutions (the NDPP) to head the prosecuting authority,270 a position
that is equivalent to that of Attorney-General in most other Anglo-
American dispensations. The President in his or her capacity as head of the
national executive appoints the NDPP. The National Prosecuting Authority
(NPA) Act 271 also provides for the removal of the NDPP by the President
in certain circumscribed circumstances. Although the President has some
discretion in who to appoint as NDPP, this discretion is not unfettered. The
NPA Act prescribes objective criteria regarding the qualifications and
abilities of the NDPP and a court can determine whether the President has
complied with these criteria when selecting and appointing a new
NDPP.272 This is a necessary consequence of the wording of section 179
which requires that the NDPP must be appropriately qualified. The
Constitution, read with the NPA Act, does not leave it open to the President
to determine whether a candidate is appropriately qualified to be appointed
as NDPP, but rather determines that the legislature must set out the criteria
for appointment. The NPA Act thus requires the NDPP to possess legal
qualifications that would entitle him or her to practise in all courts in the
Republic, and must ‘be a fit and proper person, with due regard to his or her
experience, conscientiousness and integrity, to be entrusted with the
responsibilities of the office concerned’.273 The NDPP must also be a
South African citizen.274
The NPA Act further states that the NDPP holds office for a non-
renewable term of 10 years.275 Although the NDPP serves a non-
renewable term of 10 years and enjoys some security of tenure, this security
is not absolute. The NPA Act also provides for the NDPP to be suspended
and removed from office under certain circumstances. The President may
provisionally suspend the NDPP from his or her office after instituting an
enquiry into his or her fitness to hold office. This enquiry can be conducted
by anyone appointed by the President,276 but the enquiry must be aimed at
determining whether the NDPP is guilty of misconduct, suffers from
continued ill health, is incapable of carrying out his or her duties of office
efficiently, or is no longer a fit and proper person to hold the office
concerned. The NDPP can only be removed if the enquiry finds that, based
on one or more of these objective criteria, there are reasons to dismiss him
or her. Even then, the recommendation to dismiss the NDPP will only take
effect if this is confirmed by the adoption of a motion to that effect in the
NA.277 These provisions relating to the appointment and the dismissal of
the NDPP are all aimed at giving effect to the constitutional injunction in
section 179(4) that requires the adoption of national legislation to ensure
that the prosecuting authority exercises its functions without fear, favour or
prejudice to ensure its independence. It provides a degree of protection to
the NDPP to ensure his or her structural independence.
However, at first glance, this independence of the NPA and its head is
not set out in as clear a manner in the Constitution as we would have
thought necessary. Thus, section 179(6) of the Constitution states that the
Cabinet member responsible for the administration of justice must exercise
final responsibility over the prosecuting authority. Until recently, it was
therefore unclear to what extent the NPA was truly independent from the
executive and whether the Minister of Justice or the President could ever
intervene in decisions taken by the NPA to prosecute or not to prosecute an
accused. This is an important question that goes to the heart of the
credibility and effectiveness of the NPA. Where the NPA has to decide on
whether to prosecute or not to prosecute a politician or a politically well-
connected individual or business leader, it is important that such a decision
will be above suspicion and that a perception does not arise that the NPA
makes decisions based on political or financial considerations.
However, in many Anglo-American countries there is no generally
accepted rule that the prosecuting authority ought to be free from executive
or political control. In many Anglo-American countries the Attorney-
General (the equivalent of the NDPP) is a political appointee – often at
ministerial level. Nevertheless, in most of these jurisdictions the Attorney-
General would be required by convention to make prosecutorial decisions
without regard to political considerations and is not supposed to subject his
or her discretionary authority to that of government. He or she is also
usually not responsible to government to justify the exercise of his or her
discretion because this political office has judicial attributes.278
In South Africa, the role of the Attorney-General in the pre-democratic
era was not without controversy. The Union of South Africa Act, 1909
established the power of the Attorney-General to make prosecutorial
decisions although he or she was always viewed as a civil servant. The
position changed in 1926 when all powers, authorities and functions
relating to the prosecution of crimes and offences were vested in the
Minister of Justice despite the fact that the decision to prosecute or not to
prosecute remained with the Attorneys-General. The Minister exercised an
appeal or review function only. As from 1935, Attorneys-General had to
exercise their authority and perform their functions under the relevant
legislation 279 subject to the control and directions of the Minister who
could reverse any decision.280 As South Africa moved towards a
democratic dispensation, this position was reversed and the independence
of the Attorneys-General regarding prosecutorial decisions was reinstated in
1992. However, the Minister had to co-ordinate their functions and could
request information from them or ask them to report on any matter, and they
had to submit annual reports to the Minister.281
Until recently, the prosecution and prosecutorial authority did not receive
much attention in South African constitutional jurisprudence. As pointed
out above, this is important because if controversial prosecutions can be
stopped before they reach the courts, even the most independent tribunal
cannot guarantee equal treatment for all.282 The independence of the NPA
is therefore linked to that of the judicial system as a whole. Although at first
there was some uncertainty about the nature of the independence of the
NPA under the 1996 Constitution, the Constitutional Court and the SCA
have since cleared up any confusion about the question.
Following precedent from the Namibian Supreme Court, the SCA found
that the provision requiring that members of the NPA act without fear,
favour or prejudice and the provision stating that the Minister of Justice
must exercise final responsibility over the NPA are not incompatible.283 A
balance can be struck as follows. The Minister may not instruct the NPA to
prosecute or to decline to prosecute or to terminate a pending prosecution,
in other words interfere with individual prosecutorial decisions, because
that would interfere with the independence of the NPA. However, the
Minister is entitled to be kept informed in respect of all prosecutions
initiated or to be initiated which might arouse public interest or involve
important aspects of legal or prosecutorial authority.284
The Constitutional Court has confirmed that the Constitution requires the
NPA to act independently from the executive and, as such, the NDPP must
be viewed as a ‘non-political chief executive officer directly appointed by
the President’.285 This is significant as it underscores the fact that the
office of the NDPP ‘must be non-political and non-partisan’, and that its
role ‘is closely related to the function of the judiciary’.286 In affirming the
need to appoint an independent NDPP in accordance with the Constitution
and the NPA Act, the Constitutional Court set out a list of goals which the
President must aim to achieve when he or she appoints the NDPP. The
purpose of empowering the President to appoint the NDPP, stated the Court,
is to ensure that the person appointed as NDPP is sufficiently conscientious
and has the integrity required to be entrusted with the responsibilities of the
office and, in particular, to ensure, among other things, that:287
• the prosecuting authority performs its functions honestly and without
fear, favour or prejudice
• decisions to institute criminal prosecution are taken honestly, fairly and
without fear, favour or prejudice
• any improper interference, hindrance or obstruction of the prosecuting
authority by any organ of state is not tolerated.

CRITICAL THINKING

A critical analysis of the Ginwala Report on the

dismissal of the NDPP, Vusi Pikoli
The former head of the NPA, Vusi Pikoli, was suspended
from his job as NDPP and was then dismissed by the
President on the basis of a report prepared by Frene
Ginwala. This was after she had conducted the requisite
enquiry mentioned above in accordance with the provisions
of the NPA Act. It is unclear whether this removal from
office was legally valid or not. De Vos provided the
following critical analysis of the Ginwala Report: 288
At the heart of the Ginwala Commission of Enquiry Report and the
decision by President Kgalema Motlanthe to recommend the
removal from office of Vusi Pikoli, the National Director of Public
Prosecutions, is a rather troubling interpretation of what is required
to safeguard the constitutionally protected independence of the
NPA. The Report correctly points out that the Constitutional Court
had held that section 179(4) of the Constitution, providing that
national legislation must ensure that the prosecuting authority
exercises its functions ‘without fear, favour or prejudice’, amounted
to ‘a constitutional guarantee of independence’. It also points out
that the Court had further noted that ‘any legislation or executive
action inconsistent therewith would be subject to constitutional
control by the courts’ and concludes that ‘[a]ny attempt by the
Minister of Justice to influence prosecutorial discretion in
individual cases would therefore be contrary to the Constitution’.
But, the Report then states:

Sufficient attention has not been paid to the requirement of

democratic accountability of the prosecuting authority. In
focusing only on independence from political interference they
have erred in conflating freedom from control with freedom from
accountability. Further, scant attention has been paid to the
nature, content and ambit of the ‘final responsibility’ of the
Minister, and even less to the relationship between this
responsibility and the prosecutorial independence of the NDPP.

The Report then refers to Chapter 3 of the Constitution, which deals

with the principle of co-operative government between the national,
provincial and local spheres of government and all organs of state
within those spheres. It argues that the NDPP has an
extraordinarily onerous duty to co-operate with the President, the
relevant Minister and other organs of state such as the South
African Police Service.

If this interpretation is correct, it would place a very heavy burden

on the NPA to co-operate with the executive when deciding to issue
warrants for the arrest of high-ranking state officials or to
prosecute them. In the case of Selebi, the Commission found that
its own interpretation of the Constitution and the NPA Act required
the NPA boss not only to have informed the Minister and the
President before requesting that a warrant of arrest be issued for
the National Police Commissioner, but also to have acquiesced to a
request by the President not to proceed with executing the arrest
until such time as the President had taken the steps he deemed
necessary for what he deemed to be in the interest of ‘national
security’.

The interpretation of the NPA Act and the Constitution referred to

seems controversial as the NPA Act does not explicitly require the
NDPP to inform the Minister – let alone the President – of any
actions to arrest anyone unless he or she explicitly asks for such
information. It is not clear that the NPA’s constitutional
independence, safeguarded in the Constitution (as developed by
the SCA and the Constitutional Court), can be squared with this
interpretation that, in effect, gives the President a veto power over
decisions to issue arrest warrants against high placed government
officials merely because the President cites issues of ‘national
security’. It is also not clear that Chapter 3 of the Constitution
applies to an independent body like the NPA as this Chapter deals
with relations between the three spheres of government. It is my
opinion that the heavy reliance placed by the Ginwala Commission
on Chapter 3 of the Constitution completely misconstrues the
nature of Chapter 3 as well as the constitutional requirements for
an independent NPA. Her interpretation of the Constitution
acknowledges the independence of the NPA on the one hand, then
takes it away with the other. Moreover, there is a good reason that
‘national security’ is sometimes called the last refuge of
scoundrels. It is such a vague concept that it would potentially give
the President or the Minister extraordinary power to intervene in
the decisions of the NDPP and may well place the NDPP in the
untenable position of always having to worry whether his or her
decision may be construed by the politicians as having national
security implications on their say-so. Given the fact that Ginwala
did not find that Pikoli’s actions did indeed hold any threat for
national security, the decision by the President to fire Pikoli seems
like setting a dangerous precedent as a future President will now
be able to pressure the NDPP when he or she embarks on a course
of action not favoured by the President by making vague assertions
of national security being at stake. It is also worrying that Ginwala
expressed concern that Pikoli had not fully appreciated the
sensitivities of the ‘political environment’ in which the NPA needs
to operate and his responsibility to manage this environment. An
appreciation of the ‘political environment’ does not seem to sit
 easily with a duty to exercise one’s duties without fear, favour or
prejudice.

Ginwala then continues:

Adv Pikoli needs to always recognise the final responsibility of

the Minister and should have proactively made her aware of all
matters of a sensitive nature that the NPA became aware of in
the course of its functions, and fully and regularly briefed her on
the progress of high-profile investigations and prosecutions.

This obligation on the part of the NDPP is not found in the

Constitution or the NPA Act and was invented by Ginwala. It stems
from her view that the Minister has to exercise final responsibility
over the NPA and that this means more than set out in the Act. If an
NDPP could be fired for not informing the Minister of something
she or he thought was important, the NDPP would be busy all day
long writing reports to the Minister. This is not what the Act
requires and, I would submit, it could not have been intended to
require this as the Act must be read in the context of the
Constitution that guarantees the independence of the NPA.
Ginwala’s interpretation would make the Act unconstitutional. The
report does contain rather devastating findings although these
findings are not followed to their logical conclusion. Thus, Ginwala
analyses the letter signed by the then Minister of Justice a few days
before Pikoli was suspended and states that:

the letter conveys a meaning that Adv Pikoli was to stop any
plan to arrest and prosecute the National Commissioner of
Police until the Minister was satisfied that there was sufficient
information and evidence to do so. The Minister has since on
affidavit said that it was not her intention to stop Adv Pikoli from
discharging his duties or performing his functions as the NDPP.
Assuming this is correct, the conduct of the DG: Justice in
drafting the document in the manner it reads was reckless to
say the least. The DG: Justice should have been acutely aware
of the constitutional protection afforded to the NPA to conduct
its work without fear, favour or prejudice. The contents of the
letter were tantamount to executive interference with the
prosecutorial independence of the NPA, which is recognised as
a serious offence in the Act.

So, Ginwala in effect found that there was an illegal and

criminal order to Pikoli to stop the prosecution of Selebi.
This order was drafted by the DG and signed by the
Minister. Yet she also finds that there was no reason to
 believe that the President suspended Pikoli because of the
prosecution of Selebi. What I wonder is: who decided that
this letter had to be written? Was the President or his
advisers involved? Would Ginwala have been forced to
come to a different conclusion if the question was posed
differently, namely whether the government wanted to fire
Pikoli because he had issued an arrest warrant for Selebi?
These questions are not answered in the Report. Could
this be because the answers would not have favoured the
man who appointed Ginwala and belonged to the same
political party of which they are both disciplined members?

SUMMARY

The judiciary is the third, but distinct and most independent, branch of
government within the system of separation of powers.
At the pinnacle of the superior courts is the Constitutional Court which
now has the jurisdiction not only to hear any constitutional matter, but also
any other matter that raises an arguable point of law of general importance
which, in the opinion of the Constitutional Court, ought to be considered by
it. The Constitutional Court ordinarily acts as a court of appeal, considering
constitutional and other matters of legal doctrine on appeal from any of the
High Courts or from the Supreme Court of Appeal (SCA). However, when
a High Court declares invalid provisions of an Act of Parliament, the
provisions of a provincial legislature or an act of the President, the matter
automatically goes to the Constitutional Court which is required to confirm
the order of invalidity before such an order has any force.
In addition, the Constitutional Court has exclusive jurisdiction to decide:
• on disputes between organs of state in the national or provincial sphere
concerning the constitutional status, powers or functions of any of those
organs of state
• on the constitutionality of any parliamentary or provincial Bill
• on the constitutionality of Bills referred to it by the NA or provincial
legislatures
• on the constitutionality of any amendment to the Constitution
• that Parliament or the President has failed to fulfil a constitutional
obligation
• or to certify a provincial constitution.
The SCA is an appeal court that can hear appeals from High Courts on any
matter except matters exclusively reserved for the Constitutional Court. The
SCA is the final court on matters relating to findings of fact and to the
application of facts to law. The High Courts can hear constitutional matters,
except those matters exclusively reserved for the Constitutional Court, and
often sit as courts of first instance.
The judiciary (and, in South Africa, most pertinently the superior courts,)
is tasked with interpreting and enforcing the Constitution and thus as acting
as the referee to ensure that members of the other branches of government
act in accordance with the Constitution. It is therefore important that special
safeguards are put in place to secure its independence. During the apartheid
era, the independence of the judiciary was not adequately guaranteed. With
the advent of democracy, the Constitution created additional mechanisms to
safeguard the independence of the judiciary.
The Judicial Service Commission (JSC), composed of a combination of
lawyers, judges and politicians, now plays an important role in the
appointment of all superior court judges. When the President appoints the
Chief Justice or Deputy Chief Justice and the President and Deputy
President of the SCA, this role of the JSC is only advisory. With all other
High Court judges, the JSC selects the appointees who are then merely
formally appointed by the President. There is much controversy about the
criteria for the appointment of judges, but the need for the judiciary to
reflect broadly the racial and gender composition of South Africa does play
a pivotal role in the consideration of suitable candidates for appointment.
Apart from the appointment of impartial and independent judicial
officers, the independence of the judiciary is formally guaranteed by
requiring judges to take an oath of office, by safeguarding the security of
tenure of judges, by protecting the financial security of judges and by
limiting the civil liability of judges. Lower courts and traditional courts are
less independent but it is assumed that the superior courts will protect these
courts and will ensure that their decisions comply with the requisite
impartiality and independence.
The National Prosecuting Authority (NPA) is neither part of government
nor of the judiciary but it does play a pivotal role in the operation of the
criminal justice system as it is tasked with making decisions on the
prosecution of criminal suspects. The NPA has a duty to act without fear,
favour or prejudice. This means that it must act independently from the
government of the day although it is legally and constitutionally required to
report to the Minister of Justice on its activities and decisions. The NPA is
headed by the National Director of Public Prosecutions (NDPP) whose
independence is safeguarded by the NPA Act. The President appoints the
NDPP but the appointee must comply with the objective criteria set out in
the NPA Act.

1 Van Zyl, D (2009) The judiciary as a bastion of the legal order in challenging times
Potchefstroom Electronic Law Journal 12(2):1–13 at 2.
2 See Choudhry, S (2009) ‘He had a mandate’: The South African Constitutional Court and the
African National Congress in a dominant party democracy Constitutional Court Review 2:1–86
at 1.
3 S 172(1)(a).
4 S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449
(CC) (11 April 2001) para 18:
Therefore courts have over the centuries developed a method of functioning, a self-
discipline and a restraint which, although it differs from jurisdiction to jurisdiction,
has a number of essential characteristics. The most important is that judges speak
in court and only in court. They are not at liberty to defend or even debate their
decisions in public. It requires little imagination to appreciate that the alternative
would be chaotic. Moreover, as a matter of general policy judicial proceedings of
any significance are conducted in open court, to which everybody has free access
and can assess the merits of the dispute and can witness the process of its resolution.
This process of resolution ought as a matter of principle to be analytical, rational
and reasoned. The rules to be applied in resolving the dispute should either be
known beforehand or be debated and determined openly. All decisions of judicial
bodies are as a matter of course announced in public; and, as a matter of virtually
invariable practice, reasons are automatically and publicly given for judicial
decisions in contested matters. All courts of any consequence are obliged to
maintain records of their proceedings and to retain them for subsequent scrutiny.
Ordinarily the decisions of courts are subject to correction by other, higher
tribunals, once again for reasons that are debated and made known publicly.
5 Mahomed, I (1998) The role of the judiciary in a constitutional state South African Law
Journal 115(1):111–15 at 112. See also Mamabolo para 16:
 In our constitutional order the judiciary is an independent pillar of state,
constitutionally mandated to exercise the judicial authority of the state fearlessly
and impartially. Under the doctrine of separation of powers it stands on an equal
footing with the executive and the legislative pillars of state; but in terms of
political, financial or military power it cannot hope to compete. It is in these terms
by far the weakest of the three pillars; yet its manifest independence and authority
are essential. Having no constituency, no purse and no sword, the judiciary must
rely on moral authority. Without such authority it cannot perform its vital function
as the interpreter of the Constitution, the arbiter in disputes between organs of
state and, ultimately, as the watchdog over the Constitution and its Bill of Rights –
even against the state.
6 (CCT 59/09) [2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March
2010) paras 92–3.
7 See generally Roux, T (2009) Principle and pragmatism on the Constitutional Court of South
Africa International Journal of Constitutional Law 7(1):106–38.
8 For a discussion of the role of the judiciary during apartheid, see Forsyth, CF (1985) In Danger
for Their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from
1950–1980; Dyzenhaus, D (1991) Hard Cases in Wicked Legal Systems: South African Law in
the Perspective of Legal Philosophy; Ellman, SJ (1992) In a Time of Trouble: Law and Liberty
in South Africa’s State of Emergency.
9 Mtshaulana, PM ‘The history and role of the Constitutional Court in South Africa’ in Andrews,
P and Ellmann, S (2001) The Post-Apartheid Constitutions: Perspectives on South Africa’s
Basic Law 525.
10 See Klug, H (2010) The Constitution of South Africa: A Contextual Analysis 225–30. See also
Dugard, J (1978) Human Rights and the South African Legal Order.
11 Klug (2010) 226. See generally Haysom, N and Kahanovitz, S ‘Courts and the State of
Emergency’ in Moss, G and Obery, I (eds) (1987) South African Review 4 192.
12 See Basson, D (1987) Judicial activism in a State of Emergency: An examination of recent
decisions of the South African courts South African Journal on Human Rights 3(1):28–43 at
28.
13 See Madala, T (2001) Rule under apartheid and the fledgling democracy in post-apartheid
South Africa: The role of the judiciary North Carolina Journal of International Law and
Commercial Regulation 26(3):743–66 at 748. See also Azanian Peoples Organization
(AZAPO) and Others v President of the Republic of South Africa and Others (CCT17/96)
[1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996) para 1 where
Mahommed states: ‘The legitimacy of law itself was deeply wounded as the country
haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the
entire nation.’
14 Ellmann, S (1995) Law and legitimacy in South Africa Law and Social Inquiry 20(2):407–79
at 425.
15 Ellmann (1995) 409.
16 See Madala (2001) 745.
17 See Madala (2001) 748; Higginbotham, FM (1994) Sins from the past and lessons for the
future: Eliminating apartheid in South African public accommodation and the challenge to an
enlightened judiciary Boston University International Law Journal 12(1):1–56 at 1.
18 See the report by Gordon, A and Bruce, D (2006) Transformation and independence of the
judiciary in South Africa, Centre for Study of Violence and Reconciliation (CSVR) 1–57 at 13.
19 See Dyzenhaus, D (1998) Judging the Judges, Judging Ourselves: Truth, Reconciliation and
the Apartheid Legal Order 16, quoted in Gordon and Bruce (2006), indicating that this
approach means that the ‘judges hold that the judiciary duty when interpreting a statute is
always to look to those parts of public record that make clear what the legislators as a matter of
fact intended [and] in this way, the judges merely determined the law as it is, without
permitting their substantive convictions about justice to interfere’.
20 See Dugard (1978) 369.
21 See Govindjee, A and Olivier, M ‘Finding the boundary: The role of the courts in giving effect
to socio-economic rights in South Africa’ in Osode, PC and Glover, G (eds) (2010) Law and
Transformative Justice in Post-Apartheid South Africa 79.
22 Corder, H (2004) Judicial authority in a changing South Africa Legal Studies 24(2):253–74 at
255.
23 See S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3)
SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 301 where Mokgoro J
stated that:
… due to the sovereignty of parliament, the supremacy of legislation and the
absence of judicial review of parliamentary statutes, courts engaged in simple
statutory interpretation, giving effect to the clear and unambiguous language of the
legislative text – no matter how unjust the legislative provision.
24 See Gordon and Bruce (2006) 11.
25 See Wesson, M and Du Plessis, M (2008) Fifteen years on: Central issues relating to the
transformation of the South African judiciary South African Journal on Human
Rights 24(2):187–213 at 190.
26 Act 59 of 1959.
27 Wesson and Du Plessis (2008) 190.
28 Wesson and Du Plessis (2008) 190. See also Cameron, E (1982) Legal chauvinism, executive-
mindedness and justice: LC Steyn’s impact on South African law South African Law Journal
99(1):38–75 at 40, detailing the ‘meteoric’ rise of LC Steyn to the position of Chief Justice,
largely on the basis of his political affiliation.
29 See Madala (2001) 759.
30 Madala (2001) 759.
31 Mokgoro, Y (2010, December) Judicial appointments Advocate 43–8. See also Davis, DM
(2010, December) Judicial appointments in South Africa Advocate 40–3.
32 Moerane, M (2003) The meaning of transformation of the judiciary in the new South African
context South African Law Journal 120(4):708–18 at 712.
33 Moerane (2003) 712. See also Dugard, J (2007) Judging the judges: Towards an appropriate
role for the role of the judiciary in South Africa’s transformation Leiden Journal of
International Law 20(4):965–81 at 968.
34 See, for example, the Income Tax Act 58 of 1962 which created a special court for hearing
income tax appeals.
35 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 273.
36 See generally the Black Administration Act 38 of 1927 (BAA).
37 Policy Framework on the Traditional Justice System under the Constitution, Department of
Justice and Constitutional Development 10, available at http://www.pmg.org.za/policy-
documents/2009/03/02/policy-framework-traditional-justice-system-under.
38 Vani, MS ‘Customary law and modern governance of natural resources in India: Conflicts,
prospects for accord and strategies’ in Pradham, R (ed) (2002) Legal Pluralism and Unofficial
 Law in Social, Economic and Political Development 419.
39 Vani 419.
40 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October
2004).
41 (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008).
42 Vani 419.
43 Vani 419.
44 Vani 419.
45 Vani (2002) 419.
46 (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11 March
2004) para 74.
47 See the Traditional Courts Bill B 1–2012 available at
http://www.justice.gov.za/legislation/bills/2012-b01tradcourts.pdf. The Bill has been heavily
criticised. See, for example, the submission made to Parliament by the Law, Race and Gender
Institute, now the Centre for Law and Society, available at
http://www.cls.uct.ac.za/usr/lrg/docs/TCB/2012/lrg_feb2012_ncopsubmission.pdf.
48 S 167(1) read with s 165(6) of the Constitution as well as s 4(1) of the Superior Courts Act 10
of 2013. See also Justice Alliance of South Africa v President of Republic of South Africa and
Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for
Applied Legal Studies and Another v President of Republic of South Africa and Others (CCT
53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR
1017 (CC) (29 July 2011) para 78.
49 S 167(1) of the Constitution read with s 4(2) of the Superior Courts Act.
50 Justice Alliance para 78.
51 Justice Alliance para 78.
52 Justice Alliance para 78.
53 Justice Alliance para 79.
54 S 4(1)(b) of the Superior Courts Act.
55 S 166(b) of the Constitution. See also Currie and De Waal (2001) 278.
56 S 168(1) of the Constitution.
57 S 4(2)(b) of the Superior Courts Act.
58 S 5(1)(b) of the Superior Courts Act.
59 S 169.
60 S 169(2) of the Constitution.
61 S 6(2) of the Superior Courts Act.
62 S 8(4)(c) of the Superior Courts Act.
63 S 6 of the Superior Courts Act. Most sections of the Act came into operation in August 2013.
64 See ss 10–16 of the Magistrates Act 90 of 1993.
65 Act 66 of 1995 as amended by Act 127 of 1998.
66 Act 22 of 1994 as amended by Act 48 of 2003.
67 Act 58 of 1962.
68 Children’s Act 38 of 2005.
69 Act 99 of 1998.
70 Act 116 of 1998.
71 Berman G, and Feinblatt, J (2001) Problem-solving courts: A brief primer Law and Policy
23(2):125–40 at 125.
72 See Currie and De Waal (2001) 279–80.
73 See Klug (2010) 237–8.
74 S 168(3).
75 S 167(3).
76 However, the Constitution Seventeenth Amendment Act, 2012, available at
http://www.info.gov.za/view/DownloadFileAction?id=184794, changes this state of affairs.
77 See s 167(3) before it was amended.
78 S 167(3)(b) of the Constitution. See Alexkor Ltd and Another v Richtersveld Community and
Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003) para 24 where the Court had to deal with the interpretation of the
Restitution of Land Rights Act 22 of 1994 in dealing with questions about the Richtersveld
community’s rights to the land, but stated that it would also be necessary to deal with non-
constitutional matters:
A more difficult question is to determine whether this Court has jurisdiction to deal
with all issues bearing on or related to establishing the existence of these matters.
For example, the question might be asked whether the issue concerning the
existence of the Community’s rights in land prior to the colonisation of the Cape, or
the content or incidence of such rights, constitute in themselves ‘constitutional
matters’; the same might be asked concerning the continued existence of such rights
after the British Crown’s annexation of the Cape in 1806, or after the 1847
Proclamation or the subsequent statutory and other acts thereafter.
79 S 167(7) of the Constitution.
80 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000)
para 44.
81 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545
(CC) (25 August 2000) para 24.
82 See Currie, I and De Waal, J (2005) The Bill of Rights Handbook 5th ed 66.
83 Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938
(CC); 2001 (10) BCLR 995 (CC) (16 August 2001) para 33; see also para 36. See also Thebus
and Another v S (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100
(CC) (28 August 2003) para 25; K v Minister of Safety and Security (CCT52/04) [2005] ZACC
8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC) (13 June 2005)
para 15; Masiya v Director of Public Prosecutions Pretoria (The State) and Another
(CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (10 May 2007)
para 33; Barkhuizen v Napier (CCT72/05) [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7)
BCLR 691 (CC) (4 April 2007) para 35. Some commentators have wrongly taken issue with
this interpretation, arguing that the Constitution accords the spirit, purport and object of the
Bill of Rights only a secondary role to serve as a tie-breaker when the rights in the Bill of
Rights, justice and the rules of the common law are indeterminate. See Fagan, A (2010) The
secondary role of the spirit, purport and objects of the Bill of Rights in the common law’s
development South African Law Journal 127(4):611–27. Fagan has been criticised by Davis,
who argues that the Constitution intended that the common law reflect the normative value
system as found in a holistic reading of the text of the Constitution. This means that the trigger
that propels judges to make the decision to develop the common law is to be found in a judicial
engagement with the constitutional value system. See Davis, D (2012) How many positivist
legal philosophers can be made to dance on the head of a pin? A reply to Professor Fagan
South African Law Journal 129(1):59–72.
84 See S v Boesak (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912
(1 December 2000) para 14.
85 Pharmaceutical Manufacturers para 20.
86 Carmichele para 54.
87 See ss 172(1) and 167(4)(a) of the Constitution. See also Boesak para 14.
88 National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town
and Others (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC)
(6 December 2002) para 14; Alexkor para 23; Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) para 25.
89 Act 4 of 2000.
90 MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008
(1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
91 S 167(3)(b) of the Constitution.
92 S 167(3)(c) of the Constitution.
93 Boesak para 15.
94 (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36; 2001 (1) SA 912 (1 December 2000).
95 S v Boesak (105/99) [2000] ZASCA 24 (12 May 2000).
96 Boesak para 15.
97 S 167(5) of the Constitution.
98 (CCT13/09) [2009] ZACC 20; 2009 (6) SA 94 (CC) (22 July 2009) para 15.
99 S 167(4)(a) of the Constitution.
100 S 167(4)(b) of the Constitution.
101 S 167(4)(c) of the Constitution.
102 S 80(2)(a) of the Constitution.
103 S 122(2)(a) of the Constitution.
104 Ss 80(2)(b) and 122(2)(b) of the Constitution.
105 S 167(4)(d) of the Constitution.
106 (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002)
para 12.
107 UDM para 12.
108 (CCT36/95) [1995] ZACC 10; 1995 (12) BCLR 1561; 1996 (1) SA 769 (29 November 1995)
para 47.
109 S 167(4)(e) of the Constitution.
110 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others (SARFU I) (CCT16/98) [1998] ZACC 21; 1999 (2) SA 14; 1999 (2) BCLR 175
(2 December 1998) para 25.
111 Women’s Legal Trust para 11.
112 Women’s Legal Trust para 12.
113 See generally Doctors for Life International v Speaker of the National Assembly and Others
(CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006).
114 See Certification of the Kwazulu-Natal Constitution (CCT15/96) [1996] ZACC 17; 1996 (11)
BCLR 1419; 1996 (4) SA 1098 (6 September 1996); Certification of the Constitution of the
Western Cape, 1997 (CCT6/97) [1997] ZACC 8; 1997 (12) BCLR 1653; 1998 (1) SA 655
(2 September 1997); Certification of the Amended Text of the Constitution of the Western Cape,
1997 (CCT29/97) [1997] ZACC 15; 1997 (12) BCLR 1653; 1998 (1) SA 655 (18 November
1997).
115 Bruce and Another v Fleecytex Johannesburg CC and Others (CCT1/98) [1998] ZACC 3;
1998 (2) SA 1143; 1998 (4) BCLR 415 (24 March 1998) para 9. See also Van der Spuy v
General Council of the Bar of South Africa (CCT48/01) [2002] ZACC 17; 2002 (5) SA 392;
2002 (10) BCLR 1092 (18 July 2002) para 6; National Gambling Board v Premier of
KwaZulu-Natal and Others (CCT32/01) [2001] ZACC 8; 2002 (2) BCLR 156; 2002 (2) SA
715 (21 December 2001) para 29; Moseneke and Others v Master of the High Court
(CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000)
paras 18–9; Dormehl v Minister of Justice and Others (CCT10/00) [2000] ZACC 4; 2000 (2)
SA 825; 2000 (5) BCLR 471 (CC) (14 April 2000) para 5; Christian Education South Africa v
Minister of Education (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449
(14 October 1998) paras 3–4; Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC
7; 1997 (6) BCLR 677; 1997 (3) SA 772 (5 June 1997) para 4; Transvaal Agricultural Union v
Minister of Land Affairs and Another (CCT21/96) [1996] ZACC 22; 1996 (12) BCLR 1573;
1997 (2) SA 621 (18 November 1996) para 16; Brink v Kitshoff NO (CCT15/95) [1996] ZACC
9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) para 3; Besserglik v Minister of Trade
Industry and Tourism and Others (Minister of Justice intervening) (CCT34/95) [1996] ZACC
8; 1996 (6) BCLR 745; 1996 (4) SA 331 (14 May 1996) paras 4–6; Luitingh v Minister of
Defence (CCT29/95) [1996] ZACC 5; 1996 (4) BCLR 581; 1996 (2) SA 909 (4 April 1996)
para 15; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR
293; 1996 (2) SA 464 (9 February 1996) para 29; Executive Council of the Western Cape
Legislature and Others v President of the Republic of South Africa and Others (CCT27/95)
[1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995) paras 15–7; S v
Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 11.
116 S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997 (2) SA 887
(18 November 1996) para 15; See also Carmichele para 50.
117 Bruce para 8.
118 Transvaal Agricultural Union para 20.
119 AParty and Another v The Minister for Home Affairs and Others, Moloko and Others v The
Minister for Home Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA
649 (CC); 2009 (6) BCLR 611 (CC) (12 March 2009) para 30.
120 Bruce para 9. See also Van der Spuy para 6; National Gambling Board para 29; Moseneke
paras 18–19; Dormehl para 5; Christian Education paras 3–4; Ntuli para 4; Transvaal
Agricultural Union para 16; Brink para 3; Besserglik paras 4–6; Luitingh para 15; Mbatha,
Prinsloo para 29; Executive Council of the Western Cape Legislature paras 15–17; Zuma
para 11.
121 (CCT1/98) [1998] ZACC 3; 1998 (2) SA 1143; 1998 (4) BCLR 415 (24 March 1998) paras 7–
8. See also Aparty para29.
122 S 167(3)(c) of the Constitution.
123 Currie and De Waal (2005) 111.
124 S 168(3).
125 See Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT13/99)
[2000] ZACC 3; 2002 (4) SA 294 (CC) 2002 (5) BCLR 433 (11 April 2002) para 17; De Reuck
v Director of Public Prosecutions (Witwatersrand Local Division) and Others (CCT5/03)
[2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October 2003)
para 4.
126 See Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98) [1998] ZACC 11; 1998 (4)
SA 753; 1998 (10) BCLR 1207 (27 August 1998) para 33.
127 (CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (10 May 2007)
para 17.
128 National Gambling Board para 38; Wallach v High Court of South Africa (Witwatersrand
Local Division) and Others (CCT2/03) [2003] ZACC 6; 2003 (5) SA 273 (CC) (4 April 2003)
para 7.
129 (CCT4/98) [1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207 (27 August 1998)
para 33.
130 S 169(1)(a).
131 S 167(5) of the Constitution.
132 See Currie and De Waal (2005) 122.
133 Act 32 of 1944.
134 Wesson and Du Plessis (2008) 191.
135 See also O’Regan, K (2004) Human rights and democracy – a new global debate: Reflections
on the first ten years of South Africa’s Constitutional Court International Journal of Legal
Information 32(2):200–16 at 202.
136 See S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June
2002) para 27.
137 See Constitution of Kenya (2010) item 23 in Schedule 6, which states:
(1) Within one year after the effective date, Parliament shall enact legislation …
establishing mechanisms and procedures for vetting, within a timeframe to be
determined in the legislation, the suitability of all judges and magistrates who
were in office on the effective date to continue to serve in accordance with the
values and principles set out in [the Constitution]…
(2) A removal, or a process leading to the removal, of a judge, from office by virtue
of the operation of legislation contemplated under subsection (1) shall not be
subject to question in, or review by, any court.
138 De Lange, R and Mevis, PAM (2007) Constitutional guarantees for the independence of the
judiciary Electronic Journal of Comparative Law 11(1):1–17 at 7.
139 See Ntlama, N (2009, 16–20 July) The Hlophe saga: the question for the institutional integrity
of the judiciary, Paper presented at the Law Teachers Conference in Pietermaritzburg, available
at http://wenku.baidu.com/view/6c6473f0fab069dc50220111.html.
140 Zuma para 17.
141 See also s 39(1)(b) and (c) of the Constitution which requires the court to take into account
international law and allows the court to take into account foreign case law when interpreting
the provisions of the Bill of Rights.
142 De Vos, P (2001) A bridge too far? History as context in the interpretation of the South African
Constitution South African Journal on Human Rights 17(1):1–33 at 6.
143 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995).
144 Klare, K (1998) Legal culture and transformative constitutionalism South African Journal on
Human Rights 14(1):146–88 at 173. See also Makwanyane para 207, per Kriegler J.
145 Makwanyane para 321, per O’Regan J; para 207, per Kriegler J; para 266, per Mahomed J;
para 382, per Sachs J.
146 See Klare (1998) 172–87 for examples of this kind of reasoning by the judges of the
Constitutional Court.
147 (CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) para 48.
148 (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002).
149 Van Rooyen para 19. See also De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6;
1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (28 May 1998)(CC) para 71.
150 Van Rooyen para 22.
151 Van Rooyen para 32.
152 Van Rooyen para 33.
153 Van Rooyen para 32.
154 See by Lewis, C (2008, 14 October) The troubled state of South Africa’s judiciary, Paper
presented at the South African Institute of Race Relations, available at
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?
oid=106544&sn=Detail. See also Currie and De Waal (2001) 300.
155 See Larkins, CM (1996) Judicial independence and democratization: A theoretical and
conceptual analysis American Journal of Comparative Law 44(4):605–25 at 611.
156 Larkins (1996) 611.
157 Van Rooyen paras 22 and 31.
158 For example, after Judge Chris Nicholson found that there was political interference in the
decision to charge Jacob Zuma for corruption in Zuma v National Director of Public
Prosecutions (8652/08) [2008] ZAKZHC 71; [2009] 1 All SA 54 (N); 2009 (1) BCLR 62 (N)
(12 September 2008), the NEC of the ANC decided to ‘recall’ then President Thabo Mbeki as
President of South Africa. The judgment therefore had a profound and immediate effect on
who headed up the executive and thus who governed the country.
159 Wesson and Du Plessis (2008) 191.
160 Wesson and Du Plessis (2008) 192.
161 Act 9 of 1994.
162 See Malleson, K (1999) Assessing the performance of the Judicial Service Commission South
African Law Journal 116(1):36–49 at 38.
163 S 178(1)(a)–( j) of the Constitution. See generally Davis (2010, December) 41 and Mgkoro
(2010, December) 43.
164 For an extensive discussion about the political influence on the JSC, see Powell, C and Franco.
J (2004) The meaning of institutional independence in Van Rooyen v S South African Law
Journal 121(3):562–79 at 562.
165 S 178(1) of the Constitution.
166 Acting Chairperson: Judicial Service Commission and Others v Premier of the Western Cape
Province (537/10) [2011] ZASCA 53; 2011 (3) SA 538 (SCA); [2011] 3 All SA 459 (SCA)
(31 March 2011) para 12 where Harms AJ stated that:
it would be inconsistent and illogical for the Constitution to provide for a Premier
to participate in the appointment of a high court judge – and, as I have said, the
JSC agrees that a Premier is included for this purpose – but not in a decision to
remove such a judge. Both affect the composition of the bench of a particular high
court.
167 Davis (2010, December) 41; Wesson and Du Plessis (2008) 193; Kentridge, S (2003) The
highest court: Selecting the judges Cambridge Law Journal 62(1):55–71 at 55.
168 See, for example, McKaiser, E (2009, 6 August) Tragicomedy revealed more about JSC than
about judges Business Day in which the author takes the JSC to task for its inability to probe
any of these key questions when the JSC last year conducted interviews for four vacancies on
the Constitutional Court. See also De Vos, P (2013, 21 January) Judicial appointments: The
JSC’s transformation problem Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/judicial-appointments-the-jscs-transformation-problem/.
169 S 174(3) of the Constitution.
170 S 174(3) of the Constitution.
171 See Gauntlett, J and Du Plessis, M (2011, 25 August) Ex Parte: Freedom under Law, In re: The
Appointment of the Chief Justice Memorandum 10–11 Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/ful-proposes-changes-to-appointment-of-chief-justice/.
172 S 174(4) of the Constitution.
173 S 174(4)(a) of the Constitution.
174 S 174(4)(b) and (c) of the Constitution.
175 S 174(5) of the Constitution.
176 S 174(6) of the Constitution.
177 S 174(1) and 174(2).
178 See Judicial Service Commission, Summary of the Criteria Used by the Judicial Service
Commission when Considering Candidates for Judicial Appointments, available at
http://constitutionallyspeaking.co.za/criteria-used-by-jsc-when-considering-judicial-
appointments/.
179 Cowen, S (2010) Judicial selection in South Africa, Democratic Governance Rights Unit
(DGRU) Paper, available at
http://www.dgru.uct.ac.za/usr/dgru/downloads/Judicial%20SelectionOct2010.pdf.
180 S 165(2).
181 In an address to the International Commission of Jurists in Cape Town on 21 July 1998 5.
182 Chaskalson, A (2009, 25 June) Does Hlophe approve of campaign on his behalf? Cape Times.
183 See section 1(a) of the Constitution.
184 Cowen (2010) 47.
185 Forsyth, C (1991) Interpreting a bill of rights: The future task of a reformed judiciary South
African Journal on Human Rights 7(1):1–23 at 15–17.
186 See generally Pruitt, LR (2002) No black names on the letterhead? Efficient discrimination and
the South African legal profession Michigan Journal of International Law 23(3):545–676.
187 See, for example, Davis, RPB (1914) Women as advocates and attorneys South African Law
Journal 31(4):383–86 at 384 for an example of early discriminatory attitudes towards women
in the legal profession in South Africa:
We cannot but think the common law wise in excluding women from the profession
of law … the law of nature destines and qualifies the female sex for the bearing and
nurture of children and our race and for the custody of the world … all life-long
callings of women, inconsistent with these radical and sacred duties of their sex, as
is the profession of law, are departures from the order of nature and when
voluntary treason against it. The cruel chances of life sometime baffle both sexes
and may leave women free from peculiar duties of their sex … but it is public policy
to provide for the sex not for its superfluous members; and not to tempt women
from the proper duties of their sex by opening to them duties peculiar to ours.
188 See De Vos, P (2013, 11 April) The JSC must redefine merit to advance judicial transformation
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/the-jsc-must-
redefine-merit-to-advance-judicial-transformation/.
189 See Lewis (2008, 14 October) 2.
190 See De Vos, P (2013, 21 January) Judicial appointments: The JSC’s transformation problem
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/judicial-
appointments-the-jscs-transformation-problem/.
191 Cowen (2010) 53.
192 Davis (2010, December) 42.
193 For divergent perspectives, see Mkhabela, M (2011, 19 August) Judiciary must be de-
politicised The Sowetan available at
http://www.sowetanlive.co.za/columnists/2011/08/19/judiciary-must-be-de-politicised;
Hoffman, P (2011, 2 December) To judge the judgments Mail & Guardian available at
http://mg.co.za/article/2011-12-02-to-judge-the-judgments.
194 Cowen (2010) 57.
195 (818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013]
1 All SA 40 (SCA) (14 September 2012), affirming the decision of the Western Cape High
Court in Cape Bar Council v Judicial Service Commission and Others (11897/2011) [2011]
ZAWCHC 388; 2012 (4) BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September
2011).
196 Cape Bar Council paras 20–2.
197 Cape Bar Council para 36.
198 Cape Bar Council paras 43–4.
199 Cape Bar Council para 45.
200 Cowen (2010) 59–60.
201 S 174(8) of the Constitution states: ‘Before judicial officers begin to perform their functions,
they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and
protect the Constitution.’
202 Currie and De Waal (2001) 305.
203 See ss 176 and 177.
204 Section 176 was amended by the Constitution Sixth Amendment Act of 2001.
205 Act 47 of 2001.
206 The amendment was widely seen as a move to extend the term of office of then Chief Justice
Arthur Chaskalson who was coming to the end of his term of office. See Du Bois, F (2002)
Tenure on the Constitutional Court South African Law Journal 119(1):1–17 who criticised the
amendment of section 176 of the Constitution as well as the provisions of the Judges’
Remuneration and Conditions of Employment Act and referred to a submission made to
Parliament at the time when it was debating this issue. The article also notes critical comments
made by then Chief Justice Chaskalson about moves to extend his term.
207 (CCT 53/11, CCT 54/11, CCT 62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011).
208 Justice Alliance para 50.
209 Justice Alliance para 51.
210 Justice Alliance para 57.
211 Justice Alliance para 58.
212 Justice Alliance para 73.
213 Justice Alliance para 75.
214 Justice Alliance paras 79–80.
215 Justice Alliance para 91.
216 S 176(2) of the Constitution.
217 S 177(3) of the Constitution.
218 S 8 of the JSC Act.
219 Ss 14 and 15 of the JSC Act.
220 S 15(2) of the JSC Act.
221 S 17 of the JSC Act.
222 S 22 of the JSC Act.
223 S 33 of the JSC Act.
224 (2011 (3) SA 549 (SCA); [2011] 3 All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March
2011).
225 Freedom Under Law para 7.
226 Freedom Under Law para 63.
227 Freedom Under Law para 42.
228 Freedom Under Law para 45.
229 S 176(3).
230 Established under s 2 of the Independent Commission for the Remuneration of Public Office-
bearers Act 92 of 1997.
231 Ss 2(6) and 14 of the Judges’ Remuneration and Conditions of Employment Act.
232 See generally Currie and De Waal (2001) 307.
233 1945 AD 6.
234 1981 (1) SA 1 (A).
235 Currie and De Waal (2001) 307.
236 Act 10 of 2013.
237 If it is sought to serve process out of a magistrates’ court, then the litigant must obtain the prior
permission of that division of the Supreme Court which has appeal jurisdiction over the
magistrates’ court in question.
238 Currie and De Waal (2001) 308.
239 S 5 of the Constitutional Court Complementary Act 13 of 1995.
240 See generally Currie and De Waal (2001) 308–10.
241 See s 9(1)(b) of the Magistrates’ Courts Act which sets out the necessary qualifications for
appointment as a magistrate. See generally Van Rooyen.
242 Act 111 of 1984.
243 Currie and De Waal (2001) 308.
244 Hoexter Commission of Inquiry into the Structure and Functioning of the Courts (1983) RP
78/83 Part IV para 4.2.1 (g).
245 Act 90 of 1993.
246 Van Rooyen para 49.
247 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 136.
248 See s 3 of the Magistrates Act.
249 Van Rooyen para 57.
250 Van Rooyen para 61.
251 S 3(1)(a) of the Magistrates Act.
252 Van Rooyen para 48.
253 South African Law Commission (2003) Customary Law: Report on Traditional Courts and the
Judicial Function of Traditional Leaders Project 90 1 available at
http://www.justice.gov.za/salrc/reports/r_prj90_tradlead_2003jan.pdf (accessed on 25 January
2013).
254 See, for example, the Black Administration Act 38 of 1927, the Bophuthatswana Traditional
Courts Act 29 of 1979, the KwaNdebele Traditional Authorities Act 8 of 1984, the Chiefs
Courts Act 6 of 1993 (Transkei) and the KwaZulu Amakhosi and Iziphakanyiswa Act 9 of
1990.
255 Act 38 of 1927. Most sections of this law have been repealed, but these sections are some of
the few that were retained and continue to be in operation.
256 Section 16 of Schedule 6 of the Constitution reads as follows:
Every court, including courts of traditional leaders, existing when the new
Constitution took effect, continues to function and to exercise jurisdiction in terms
of legislation applicable to it and anyone holding office as a judicial officer
continues to hold office in terms of legislation applicable to that office, subject to
any amendment or repeal of that legislation, and consistency with the new
Constitution.
257 S 211(1) states: ‘The institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.’
258 S 212(1).
259 Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Limited v North
West Provincial Government and Another (CCT22/99) [2000] ZACC 2; 2000 (4) BCLR 347;
2001 (1) SA 500 (2 March 2000) para 1. See also Moseneke paras 20–1 where the
Constitutional Court described the BAA as follows:
The Act systematised and enforced a colonial form of relationship between a
dominant white minority who were to have rights of citizenship and a subordinate
black majority who were to be administered. … It is painful that the Act still
survives at all. The concepts on which it was based, the memories it evokes, the
language it continues to employ, and the division it still enforces, are antithetical to
the society envisaged by the Constitution. It is an affront to all of us that people are
still treated as ‘blacks’ rather than as ordinary persons seeking to wind up a
deceased estate, and it is in conflict with the establishment of a non-racial society
where rights and duties are no longer determined by origin or skin colour.
260 S 12(4) of the BAA provides for appeals from judgments of a chief, headman or chief’s deputy
in a civil matter, while s 20(6) provides for appeals from a chief, headmen or chief’s deputy in
a criminal matter. In each case the appeal goes to the magistrates’ court. See also Bennett, TW
(2004) Customary Law in South Africa 127.
261 SALC (2003) Report on Traditional Courts and the Judicial Function of Traditional Leaders 5.
262 See s 28(1) of the Traditional Leadership and Governance Framework Act 41 of 2003
(TLGFA).
263 Ss 12 and 20 of the BAA.
264 SALC (2003) Report on Traditional Courts and the Judicial Function of Traditional Leaders 6.
265 See Law, Race and Gender Unit (now Centre for Law and Society) Submission on the
Traditional Courts Bill (B1–2012) available at
http://www.lrg.uct.ac.za/usr/lrg/docs/TCB/2012/lrg_feb2012_ncopsubmission.pdf17.
266 S 165(2) of the Constitution. See Bennet (2004) 117. This argument was rejected in
Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western
Tembuland Regional Authority (1998) 3 BCLR 314 (Tk). However, in Mhlekwa & Feni v Head
of the Western Tembuland Regional Authority 2000 (9) BCLR 979 (Tk) 1017–18, the Court
held that the fact that there is a fusion of judicial and administrative functions does not
necessarily denote an absence of judicial independence. Some of the functions performed by
chiefs are such that they may potentially involve him or her in controversial public issues and
may create a perception of an unduly close relationship with the executive branch of
government. The Court implored the legislature to address this problem.
267 Bennet (2004) 128.
268 S 179(1).
269 S 179(2) of the Constitution.
270 S 179(1)(a) of the Constitution.
271 Act 32 of 1998.
272 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24;
2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) paras 14–26.
273 S 9(1).
274 S 9(2) of the NPA Act.
275 S 12(1).
276 This suggests that the President need not appoint a judge to head this enquiry although the
appointment must be rational. Given the fact that the purpose of the appointment is to enquire
into whether – objectively speaking – the NDPP is fit to continue with his or her work, it may
well be that a court would declare invalid the appointment of a person to head this enquiry if
that person is manifestly not capable of bringing an independent mind to bear on the enquiry.
277 S 12(6) and 12(7) of the NPA Act.
278 See generally National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1;
2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All
SA 243 (SCA) (12 January 2009) paras 28–30 for a history of the role of Attorneys-General in
commonwealth countries. See also Scott, IG (1987) The role of the Attorney-General and the
Charter of Rights Criminal Law Quarterly 29(2):187–99 at 187; Wade, ECS and Bradley, AW
(1993) Constitutional and Administrative Law 11th ed 402–4; Ex parte Attorney-General: In
Re Constitutional Relationship between the Attorney-General and the Prosecutor-General SA
7/93 [1995] NASC 1; 1995 (8) BCLR 1070 (Nm5) (13 July 1995); Githunguri v Republic of
Kenya [1986] LRC (Const) 618 (HC); Proulx v Quebec (Attorney-General) 2001 SCC 66,
[2001] 3 SCR 9. For the constitutional crisis about the independence of the Attorney-General
in 1924 in the UK, see De Smith, SA (1981) Constitutional and Administrative Law 4th ed
380–1.
279 General Law Amendment Act 46 of 1935.
280 See NDPP v Zuma para 29.
281 See s 5 of the Attorney-General Act 92 of 1992.
282 See also Nicholson J in Zuma v NDPP.
283 NDPP v Zuma para 32. For the Namibian jurisprudence, see Ex parte Attorney-General: In Re
Constitutional Relationship between the Attorney- General and the Prosecutor-General SA
7/93 [1995] NASC 1; 1995 (8) BCLR 1070 (Nm5) (13 July 1995).
284 NDPP v Zuma para 32. This is made clear by the NPA Act. S 32(1)(a) of the NPA Act requires
members of the prosecuting authority to serve ‘impartially’ and to exercise, carry out or
perform their powers, duties and functions ‘in good faith and without fear, favour or prejudice’
and subject only to the Constitution and the law. S 32(1)(b) further provides that no one may
 interfere ‘improperly’ with the NPA in the performance of its duties and functions. S 33(2)
reaffirms that the Minister must exercise final responsibility over the NPA and obliges the
NDPP, at the request of the Minister, to furnish the latter with information or a report with
regard to any case and to provide the Minister with reasons for any decision taken. S 22(2)(c)
states that, in exercising the review power to prosecute or not to prosecute, the NDPP may
advise the Minister ‘on all matters relating to the administration of justice’. The SCA decision
stands in sharp contrast to the decision of the High Court in the matter. In Zuma v NDPP
para 89, Judge Nicholson stated that there must not be a hint of a relationship between the
Minister of Justice and the NDPP.
285 Democratic Alliance para 16.
286 Democratic Alliance para 26.
287 Democratic Alliance para 49.
288 De Vos, P (2008, 8 December) National security, the last refuge of scoundrels? Constitutionally
Speaking available at http://constitutionallyspeaking.co.za/national-security-the-last-refuge-of-
scoundrels/.
Separation of powers and
Chapter 9 institutions

7.1 Introduction
7.2 Independence of Chapter 9 institutions
7.3 The Public Protector
7.4 The Auditor-General
Summary

7.1 Introduction
Figure 7.1 Separation of powers and Chapter 9 institutions
Chapter 9 of the Constitution establishes certain institutions that are
designed to support and strengthen constitutional democracy. These
institutions are: 1
• the Public Protector
• the South African Human Rights Commission
• the Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities
• the Commission for Gender Equality
• the Auditor-General
• the Electoral Commission.
Chapter 9 institutions ‘share two roles: that of checking government (or, in
the language of the Constitution, of contributing to accountable government
or ‘monitoring’ government), and that of contributing to the transformation
of South Africa into a society in which social justice prevails’.2 These
institutions are independent non-judicial institutions and do not play the
same role as the judiciary in enforcing the Constitution. It is therefore not
clear how these institutions fit into the traditional separation of powers
model: while they are independent from the other branches of government,3
they are also accountable to the National Assembly (NA), one of the other
branches of government.4 The institutions can make findings and
recommendations but, unlike the judiciary, they do not have the power to
review and set aside legislation or the actions of the executive. However,
they are ‘important tools to monitor the state’s realisation of individuals’
rights in terms of its constitutional obligations’.5
Regardless of this uncertain position in the separation of powers
architecture, the role of these institutions is essential in the democracy
emerging from a history of discrimination, oppression and lack of
accountability as they assist the various organs of state to adhere to the
values and principles of the new constitutional dispensation.6 To fulfil this
task, it is important that these institutions should enjoy a degree of
independence.

7.2 Independence of Chapter 9 institutions

Institutions set up to safeguard and promote democracy (and the rights
required to safeguard that democracy) can only do their work if they enjoy a
certain level of independence from the legislative and executive branches of
government.7 However, these institutions are not judicial in nature and
usually do not enjoy the same kind of institutional independence as that
enjoyed by the judiciary in a democratic state. In South Africa – as
elsewhere – these institutions therefore find themselves in a precarious
situation. On the one hand, they have to act as watchdogs to prevent the
abuse of power, often by state entities,8 and are required to act in a
scrupulously fair and impartial manner. On the other hand, these institutions
are often also required to work with the legislature and the executive and
may have to rely on their co-operation ‘to get things done’. Such
institutions are therefore often caught between Scylla and Charybdis,
having to please the executive and the legislature while also having to act
independently from them.9
 This tension is reflected in the constitutional provisions regulating these
institutions. The Constitution clearly guarantees the independence of these
institutions and proclaims that they are independent and ‘subject only to the
Constitution and the law, and they must be impartial and must exercise their
powers and perform their functions without fear, favour or prejudice’.10
Moreover, section 181(3) of the Constitution requires other organs of state
to ‘assist and protect these institutions’ to ensure their ‘independence,
impartiality, dignity and effectiveness’. Section 181(4) furthermore states
that ‘[n]o person or organ of state may interfere with the functioning of
these institutions’.11 At the same time, section 181(5) of the Constitution
states that these ‘institutions are accountable to the National Assembly, and
must report on their activities and the performance of their functions to the
Assembly at least once a year’. It is therefore far from clear how the
independence of these organisations can be squared with their responsibility
to be accountable to the legislature.
In the two Constitutional Court judgments dealing directly with
Chapter 9 institutions,12 and another decision dealing with the concept of
independence in more general terms,13 the Constitutional Court provided
some helpful guidelines for looking at the notion of independence of these
institutions. We contend that an analysis of these judgments provides
insight into the correct balance to be struck between the need for such
institutions to account to the legislature on the one hand while safeguarding
their independence on the other.
Because Chapter 9 institutions are required to account to the NA, this is
sometimes wrongly taken to mean that they are subservient to the NA.
However, if independence means anything, it means that the NA cannot
interfere in the day-to-day running of the Chapter 9 institutions. This occurs
where these institutions are viewed as part of the government instead of as
independent institutions with their unique place in the separation of powers
architecture set up by the Constitution.
The independence of institutions supporting and safeguarding democracy
is often negatively affected by the fact that they are perceived and function
in practice as institutions that form part of the government. Where, for
example, the Human Rights Commission or the Electoral Commission is
seen as being part of the government, this will place pressure on such
institutions to co-operate with the government of the day and to align
themselves with the interests of the government. This, in turn, means that it
would become more difficult for such institutions to act without fear, favour
or prejudice to hold the government accountable. Institutions called on to
make findings against the government or to act against its interest will only
be able to do so if they are really capable of acting impartially and
independently. This becomes difficult where such institutions are seen as
part of the very institution from which they have to be independent.
In principle, if not always in practice, Chapter 9 institutions in South
Africa do enjoy constitutionally and legally protected independence from
the government. The Constitutional Court pointed out in Independent
Electoral Commission v Langeberg Municipality 14 that although a
Chapter 9 institution such as the Electoral Commission is an organ of state
as defined in section 239 of the Constitution,15 these institutions cannot be
said to be a department or an administration in the national sphere of
government over which Cabinet exercises authority. These institutions are
state institutions and are not part of the government. Independence of the
institution refers to independence from the government. According to the
Court, these institutions cannot be independent from the national
government, yet be part of it.16 The Court thus affirmed the institutional
independence of these institutions. The logic of this view is that Chapter 9
institutions are not subject to the co-operative government provisions set
out in Chapter 3 of the Constitution. These institutions perform their
functions in terms of national legislation, but ‘are not subject to national
executive control’.17 There is a need for these institutions to ‘manifestly
be seen to be outside government’.18
The Langeberg case suggests that a clear and sharp distinction must be
drawn between these institutions and the executive authority. Any action by
the executive that would create an impression that the institution is not
manifestly outside government would be constitutionally unacceptable.
There is little room for manoeuvre here. More leeway exists regarding the
relationship between Parliament and the Chapter 9 institutions because
these institutions are accountable to the NA. As we shall see below, in
practice, these institutions have not always operated at sufficient arms-
length from either the executive or Parliament. This may have affected the
effectiveness of these institutions in fulfilling their mandates.
Another aspect of independence can be found in section 181(3) of the
Constitution. This section states that other organs of state, through
legislative and other measures, must assist and protect these institutions to
ensure their independence, impartiality, dignity and effectiveness.
Section 181(4) states that no person or organ of state may interfere with
the functioning of these institutions.
From these provisions we may draw a few conclusions. First,
independence is not synonymous with impartiality. Just because a body is
able to exercise its duties impartially does not mean that its independence
has been safeguarded. Independence is, in essence, a more encompassing
concept than impartiality. Second, other organs of state have a constitutional
duty to ensure the dignity of the Chapter 9 institutions. In various
judgments dealing with dignity in other contexts, the Constitutional Court
has argued that dignity will be impaired when an action sends a signal that
the institution is not worthy of respect.19 Action by the legislature or
executive that undermines respect for Chapter 9 institutions would thus be
in contravention of the provisions mentioned above. This does not mean
institutions should not and cannot be criticised and subjected to questioning,
but such questioning should be done with due regard for the independence
of these institutions. Lastly, organs of state have a duty to ensure the
effectiveness of these institutions, which relates to accountability set out
below.
The Constitutional Court affirmed the basic principle that Chapter 9
institutions must have some degree of financial independence to function
independently and to be able to exercise their duties without fear, favour or
prejudice. At the same time, the Constitutional Court made it clear that this
does not mean that these institutions can set their own budgets. What is
required is for Parliament to provide a reasonable amount of money that
would enable the institutions to fulfil their constitutional and legal
mandates. In discussing the financial independence of the Electoral
Commission, the Constitutional Court explained in New National Party v
Government of the Republic of South Africa and Others:
 This implies the ability to have access to funds
reasonably required to enable the Commission to
discharge the functions it is obliged to perform under the
Constitution and the Electoral Commission Act. This
does not mean that it can set its own budget. Parliament
does that. What it does mean, however, is that
Parliament must consider what is reasonably required by
the Commission and deal with requests for funding
rationally, in the light of other national interests. It is for
Parliament, and not the executive arm of government, to
provide for funding reasonably sufficient to enable the
Commission to carry out its constitutional mandate. The
Commission must accordingly be afforded an adequate
opportunity to defend its budgetary requirements before
Parliament or its relevant committees.20
It is important to note that this task is clearly one to be exercised by
Parliament. The Court accepted that there inevitably would be a tension
between the government/Parliament on the one side and the independent
institution on the other about the reasonableness of the amount of money to
be given to ensure the effective fulfilment of its constitutional mandate. It is
incumbent on the parties to make every effort to resolve that tension and to
reach an agreement by negotiation and good faith. This, according to the
Constitutional Court, would no doubt entail considerable meaningful
discussion, exchange of relevant information, a genuine attempt to
understand the respective needs and constraints, and the mutual desire to
reach a reasonable conclusion.21 However, when Parliament engages in this
process, it must deal with requests rationally in the light of other national
interests. This means the institutions must be afforded an adequate
opportunity to defend their budgetary requirements before Parliament or its
relevant committees. Thus ‘[n]o member of the executive or the
administration should have the power to stop transfers of money to any
independent constitutional body without the existence of appropriate
safeguards for the independence of that institution’.22
 In addition, in New National Party, the Constitutional Court stated that
the independent bodies supporting democracy require more than financial
independence. For these institutions to operate independently and for them
to fulfil their respective tasks without fear, favour or prejudice, the
Constitutional Court said that the administrative independence of these
institutions should be safeguarded.23 This implies that these institutions
must have control over those matters directly connected with their functions
under the Constitution and the relevant legislation. No matter what
arrangements Parliament or the executive may make, it is important that the
institutions must retain the ability to maintain operational control over their
core business. What is required is that any arrangements must not interfere
with the constitutional mandate of the bodies to perform their duties
impartially. In New National Party, the Constitutional Court made it clear
that section 181(3) of the Constitution requires the executive to engage with
the bodies in a manner that would ensure that the efficient functioning of
the Commission is not hampered.24
The Constitutional Court further indicated that a failure on the part of the
executive to comply with such obligations ‘may seriously impair the
functioning and effectiveness of those State institutions supporting
constitutional democracy and cannot be condoned’.25 This means that
Parliament or the executive cannot interfere directly in the day-to-day
running of these institutions. They also cannot instruct the institutions on a
micro level regarding their programmes and implementation thereof, and
cannot get directly involved in the employment or management of staff. At
the same time, Parliament and the executive have a duty to support these
institutions. If institutional problems are of such magnitude or seriousness
that they make it difficult or impossible for an institution to fulfil its
constitutional and legislative tasks, Parliament can, and indeed must, assist
such an institution to resolve these problems. Such assistance must not,
however, have the effect of removing control over matters directly
connected with an institution’s functions and must not hamper the efficient
functioning of an institution. In short, while Parliament and the executive
can engage with these institutions to assist them to improve their
performance, they cannot do so in a way that would remove final control
over administration from the institutions or that results in interference in the
efficient functioning of these institutions.
Thus, the Constitutional Court ruled that the Department of Home
Affairs cannot tell the Electoral Commission how to conduct registration,
whom to employ, and so on.26 However, if the Commission asks the
government to provide personnel to assist in the registration process,
government must provide such assistance if it is able to do so. If not, the
Commission must be provided with adequate funds to enable it to do what
is necessary. As a general rule, there has been no direct interference by the
executive with the day-to-day running of Chapter 9 institutions. Some may
argue that this has not been necessary because the appointments process has
been skewed in such a way as to ensure that those appointed to many of the
Chapter 9 institutions would not be overtly critical of the executive or the
legislature. While it is impossible to state categorically that this is indeed
the case, it is important to investigate the appointments procedure of
Chapter 9 bodies and it is to this which we now turn.

PAUSE FOR REFLECTION

The appointments procedure of Chapter 9

bodies
The independence of the various Chapter 9 bodies is
further operationalised in legislation. If we take the
Electoral Commission as an example, section 3 of the
Electoral Commission Act 27 confirms that the Electoral
Commission ‘is independent and subject only to the
Constitution and the law’ and ‘shall be impartial and shall
exercise its powers and perform its functions without fear,
favour or prejudice’.
Section 6 of the Electoral Commission Act helps to
entrench the independence of the Commission by
providing for a complicated appointments process. This
section provides that the Commission shall consist of five
members, one of whom shall be a judge, appointed by the
President. However, the President has no discretion in the
appointment. This is because section 6(2) also provides
that no person can be appointed as a member of the
Commission unless he or she:
• is a South African citizen
• does not at that stage have a high party-political profile
• has been recommended by the NA by a resolution by a
majority of its members
• has been nominated by a committee of the NA from a
list of recommended candidates submitted to it by an
independent panel. This committee must consist of
members of all of the parties represented in the NA in
proportion to the number of seats they hold.
The independent panel is made up of the Chief Justice as
chairperson, a representative of the Human Rights
Commission, a representative of the Commission on
Gender Equality and the Public Protector. It must submit a
list of no fewer than eight recommended candidates to the
committee of the NA and it must act in a transparent and
open manner.28
Section 7(3) of the Electoral Commission Act entrenches
the institutional independence of the Commission by
providing some security of tenure for members of the
Commission who serve for a period of seven years. This
tenure of Commissioners is protected in that the section
states that a commissioner may only be removed from
office by the President:
• on the grounds of misconduct, incapacity or
incompetence
• after a finding to that effect by a committee of the NA
• on the recommendation of the Electoral Court
• the adoption by a majority of the members of the NA of a
resolution calling for that commissioner’s removal from
office.
 This means that the process to remove a commissioner
cannot be initiated by any politician. Only the Electoral
Court can initiate the process of the removal of a
Commissioner and only after the Electoral Court has made
a finding as to the misconduct, incapacity or incompetence
of a Commissioner and has referred the matter to the NA.
It is only at this point that politicians get involved in the
process.

The Public Protector and the Auditor-General are of great significance for
the monitoring of the exercise of state authority. They play a fundamental
role in the monitoring, investigation and reporting on government conduct.

7.3 The Public Protector

The Public Protector has the power to investigate any conduct of the
government or administration that is alleged or suspected to be improper or
to result in any impropriety or prejudice. It also has the power to report on
that conduct and to take appropriate remedial action.29 It is an independent
and impartial institution.30 It must report to the NA at least once a year.31
This means that the Public Protector does not only report on public
maladministration but also, indirectly, protects and enforces constitutional
obligations as the government is required to act on the recommendations
made although these recommendations are not binding. Then Chief Justice
Sandile Ngcobo emphasised the importance of the Public Protector as he
correctly pointed out that the role of the institution is critical particularly in
countries emerging from the atrocities of the past because: ‘good
governance and the equitable distribution of resources is the only way for
our people to enjoy the [benefits that are associated with the attainment of
the democracy in 1994]’.32
The report released by the Public Protector on ‘an investigation into
complaints and allegations of maladministration, improper and unlawful
conduct by the Department of Public Works and the South African Police
Service relating to the leasing of office accommodation in Pretoria’ attests
to the significant role of the institution in curbing the abuse of state
authority.33 Without pronouncing on the merits of the investigation, the
report fingered the National Commissioner of Police, Bheki Cele, for
having abused his authority and failed to ensure that the signing of the lease
was done in accordance with the requirements of the Constitution and other
related legislation.34

7.4 The Auditor-General

The Auditor-General must audit and report on the accounts, financial
statements and financial management of state departments and
administrations.35 He or she must submit audit reports to any legislature,
such as Parliament or the provincial legislatures, which has a direct interest
in the audit.36 Like the Public Protector, the Auditor-General is an
independent and impartial institution.37 Conradie emphasises, ‘the Auditor-
General plays a crucial role in the public sector where the greatest number
of stakeholders, the whole population in effect, is dependent on the Auditor
to vigorously audit and report on accountability information as well as other
functions of independence’.38 It is, therefore, deduced from the powers
vested in the Auditor-General that his or her primary purpose is to ensure
the credibility of the flow of information in the accountability process.

SUMMARY

The Constitution creates a set of Chapter 9 institutions, including the

Human Rights Commission, the Public Protector, the Auditor-General and
the Electoral Commission, to promote and safeguard democracy. These
institutions are not easily slotted into the traditional separation of powers
model. While the institutions are independent and have their independence
constitutionally guaranteed and further enhanced in legislation, they are
also constitutionally required to report on their activities and the
performance of their functions to the NA at least once a year and to account
to the NA.
 The Constitutional Court has nevertheless confirmed that these
institutions are not part of government and enjoy both institutional and
administrative independence from government. Although the institutions
are independent, they are not in the same position as the judiciary as they do
not usually make binding findings that can be enforced in a similar manner
to that of the courts. They usually help to hold the government and officials
accountable and make recommendations about remedial action.

1 S 181(1) of the Constitution.

2 Murray, C (2006) The Human Rights Commission et al: What is the role of South Africa’s
Chapter 9 institutions? Potchefstroom Electronic Law Journal 9(2):122–47 at 125.
3 S 181(2) of the Constitution.
4 S 181(5) of the Constitution.
5 See Holness, D and Vrancken, P ‘Non-judicial enforcement of human rights’ in Govindjee, A
and Vrancken, P (eds) (2009) Introduction to Human Rights Law 240.
6 See Ntlama, N (2005) Unlocking the future: Monitoring court orders in respect of socio-
economic rights Tydskrif vir Hedendaags Romeins-Hollandse Reg 68(1):81–9 at 83.
7 See generally De Vos, P ‘Balancing independence and accountability: The role of Chapter 9
institutions in South Africa’s constitutional democracy’ in Chirwa, DM and Nijzink, L (eds)
(2012) Accountable Government in Africa: Perspectives from Public Law and Political
Studies 160–77.
8 The Human Rights Commission and the Public Protector are two such institutions.
9 De Vos (2009) 163.
10 S 181(2).
11 The Constitution also guarantees the independence of other institutions such as the Public
Service Commission (s 196(2)–(3)); the Broadcasting Authority (s 192) and the Financial and
Fiscal Commission (s 220(2)). There is no explicit provision for the independence of the Pan
South African Language Board which is established in s 6 of the Constitution. Furthermore,
legislation that creates these institution also provides for further protection of the independence
of these institutions. Thus, s 9(1)(b) of the Public Protector Act 23 of 1994 prohibits any
person from insulting the Public Protector or the Deputy Public Protector and from doing
anything in connection with an investigation ‘which, if the said investigation had been
proceeding in a court of law, would have constituted contempt of court’.
12 Independent Electoral Commission v Langeberg Municipality (CCT 49/00) [2001] ZACC 23;
2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June 2001) and New National Party v
Government of the Republic of South Africa and Others (CCT9/99) [1999] ZACC 5; 1999 (3)
SA 191; 1999 (5) BCLR 489 (13 April 1999).
13 S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June
2002).
14 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June
2001).
15 S 239(2) defines an organ of state as follows:
 (a) any department of state or administration in the national, provincial or local
sphere of government; or any other functionary or institution–
(b) exercising a power or performing a function in terms of the Constitution or a
provincial constitution; or exercising a public power or performing a public
function in terms of any legislation, but does not include a court or a judicial
officer.
16 Langeberg Municipality paras 28–9.
17 Langeberg Municipality para 31. See also Parliament of the Republic of South Africa (2007)
Report of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions, A
report to the National Assembly of the Parliament of South Africa, Cape Town, South Africa, 9
available at http://www.parliament.gov.za/content/chapter_9_report.pdf.
18 Langeberg Municipality para 31.
19 See generally Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home
Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June
2000).
20 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999) para 98.
See also Langeberg para 29.
21 New National Party para 97.
22 New National Party para 96.
23 New National Party para 99.
24 New National Party para 99:
The second factor, administrative independence, implies that there will be control
over those matters directly connected with the functions which the Commission has
to perform under the Constitution and the Act. The executive must provide the
assistance that the Commission requires to ensure [its] independence, impartiality,
dignity and effectiveness. The department cannot tell the Commission how to
conduct registration, whom to employ, and so on; but if the Commission asks the
government for assistance to provide personnel to take part in the registration
process, government must provide such assistance if it is able to do so. If not, the
Commission must be put in funds to enable it to do what is necessary.
25 New National Party para 95.
26 New National Party para 99.
27 Act 51 of 1996.
28 S 6(3)–(5) of the Electoral Commission Act.
29 S 182(1) of the Constitution.
30 S 182(2) of the Constitution.
31 S 182(5) of the Constitution.
32 See the report by Segalwe, O (2011, 16 March) Chief Justice Ngcobo highlights the importance
of the Public Protector available at http://www.pprotect.org.
33 See Report No 33 (2010/2011) Against the rules available at http://www.pprotect.org.
34 Report No 33 (2010/2011) 85.
35 S 188(1) of the Constitution.
36 S 188(3) of the Constitution.
37 S 181(2) of the Constitution.
38 Conradie, J (2011, April) The evolution of accounting standards in the public sector,
Unpublished paper available at http://www.accountancysa.org.za.
Multilevel government in South
Africa

8.1 The division of powers between spheres of government:

general principles
8.1.1 Introduction
8.1.2 Historical background
8.1.3 The constitutional principles
8.1.4 The principles of co-operative government
8.1.5 Intergovernmental co-ordination
8.2 The division of legislative and executive power between
the national and provincial spheres of governments
8.2.1 Introduction
8.2.2 The objectives and structure of provincial government
8.2.3 Determining legislative competence
8.2.4 The resolution of conflicts between the national and
provincial spheres
8.2.4.1 Conflicts related to concurrent competences set out in
Schedule 4
8.2.4.2 Conflicts related to exclusive provincial competences
in Schedule 5
8.3 The division of legislative and executive power between
the national and provincial and local spheres of government
 8.3.1 Introduction
8.3.2 The objectives of local government
8.3.3 The structure of local government
8.3.4 Municipal powers
8.3.4.1 Original municipal powers
8.3.4.2 Assigned municipal powers
8.3.4.3 Incidental municipal powers
8.3.5 Conflicting national, provincial and municipal laws
8.3.6 Supervision of local government
8.4 Financial affairs
8.4.1 Introduction
8.4.2 The division of fiscal powers
8.4.3 The collection of revenue
8.4.4 The distribution of revenue
8.4.5 The budgetary process
8.4.6 The central bank
8.4.7 Procurement
8.4.7.1 Introduction
8.4.7.2 The Preferential Procurement Policy Framework Act 5
of 2000
Summary

8.1 The division of powers between

spheres of government: general principles

8.1.1 Introduction
An important characteristic of the Constitution is that it not only divides
power vertically between the legislative, executive and judicial branches of
government in terms of the separation of powers doctrine. It also divides
power horizontally between the national, provincial and local spheres of
government, thus establishing a quasi-federal system of government.
Section 40(1) of the Constitution provides in this respect that ‘[i]n the
Republic, government is constituted as national, provincial and local
spheres of government which are distinctive, interdependent and
interrelated’. In this chapter we deal with this horizontal division of power.
We identify the exact powers allocated to each sphere of government,
address the relationship between the different spheres of government and
explore the constitutional management of conflicts between the various
spheres of government.
It is important to understand that in a federal or quasi-federal system, the
division of power between different spheres of government may be based
either on a divided model of federalism or an integrated model of
federalism.
In a divided model of federalism, the subject matters in respect of
which policies and laws may be made are strictly divided between the
different levels or spheres of government. Each level or sphere, therefore,
has its own exclusive powers and there are very few, if any, concurrent or
shared powers. In this model, the policies and laws made by each level or
sphere will also be implemented and administered by their own separate
civil services and departments of state. Australia, Canada and the United
States are examples of a divided model of federalism.1
In an integrated model of federalism, some subject matters are
allocated exclusively to one level or sphere of government, but most are
concurrent or shared. The subject matters in respect of which policies and
laws may be made, therefore, are not strictly divided between the different
levels or spheres of government. In this model, the framework policies and
laws made by the central level or sphere of government may be
complemented by provincial or local policies and laws and must be
implemented and administered by the provincial or local spheres of
government. Germany and South Africa are examples of an integrated
model of federalism.2
When we say that South Africa broadly adheres to an integrated model
of federalism, we are not saying that South Africa is a fully fledged federal
state. Throughout this chapter we will raise questions about the nature of
the relationship between the three spheres of government. We contend that
while the South African system displays several characteristics of a federal
system, it could probably best be described as a quasi-federal system. In a
quasi-federal system, the national government retains more power and
influence over law making and policy formulation than is usually the case
in a fully fledged federal system.

8.1.2 Historical background

Although we contend that South Africa could probably best be described as
a quasi-federal state, it is important to note that the Constitution itself
studiously avoids describing the system of governance in South Africa as
federal or quasi-federal.3 This is partly because there was profound
antipathy towards the notion of a federal state among the African National
Congress (ANC) and other liberation organisations and this manifested in
positions assumed during the negotiations process.
The antipathy displayed by the ANC towards the notion of a federal state
may be traced back, at least in part, to the ‘grand design’ of the apartheid
government. This involved the fragmentation of the country into so-called
‘self-governing’ and later ‘independent’ entities based on ethnic, group or
tribal affiliations. The ultimate goal of grand apartheid, therefore, was that
black South Africans would be stripped of their South African citizenship
and be afforded the citizenship of one of these ‘independent’ entities in
which they would exercise their civil and political rights.4
The ANC and its allies were concerned that a federal system would
result in the resurrection of the despised homeland system in a different
guise. There were also concerns that a rigid division of powers between the
national sphere of government and the various provincial spheres would
inhibit and frustrate the developmental and egalitarian objectives of the new
state seeking to the improve the quality of life of all.
During the process of negotiations, however, the ANC leadership started
seeing the benefit and advantages of strong regional government for the
delivery of services and the political empowerment of the citizens. It seems
that exposure to models of federalism such as the German Constitution
assisted in convincing the liberation organisations that effective regional
government could be combined with strong central leadership and this was
the model that was eventually adopted.5
Some of the political groups such as the predominantly Zulu party, the
Inkatha Freedom Party (IFP), favoured a strong federal arrangement and
advocated an asymmetrical arrangement with maximum devolution of
original power to the Kwazulu-Natal (KZN) region. It was the inability to
reach consensus on this and other issues that caused them to boycott the
constitutional drafting process for the interim Constitution.6

PAUSE FOR REFLECTION

Should the number of provinces be reduced?

South Africa currently has a national government, nine
provinces, six metropolitan councils together with a number
of district and local municipalities. At the time of the
transition, the provincial system allowed parties which had
strong regional support but limited national support to
participate meaningfully in the political process. This
contributed to the stabilisation of the democratic order.
The IFP boycotted the initial constitutional drafting
process in the run-up to the 1994 elections, but eventually
participated in the elections and was the dominant party in
the KZN provincial legislature for about 10 years. This
contributed to the ending of the civil strife in the province
as the IFP, despite their limited national support, played an
important role in the provincial legislature. In this sense,
the system accommodated diverse political aspirations.
There is now some thinking, particularly within the ANC,
that we should reduce the number of provinces and
emphasise strong national and local governments.7 Part of
the argument is that the costs do not justify the benefits
derived from having nine provincial governments. In
addition, there are concerns about whether all the regions
 possess the capacity to function effectively and to
implement wide-ranging policies devised by the national
sphere of government. On the other hand, the argument is
that provincial government has the potential to secure a
closer link between voters and their democratically elected
representatives. If all decisions are taken in Cape Town or
Pretoria, the quality of democracy would suffer. However,
the question remains: should the number of provinces be
reduced, say, from nine to five? If this is reduced, will it
enhance the efficiency and democratic accountability of
government?

8.1.3 The constitutional principles

As we saw in chapter 2, the transition to democracy in South Africa took
place in two stages. An important aspect of this two-stage process was that
the final Constitution had to be consistent with 34 Constitutional Principles
agreed to by the various parties at the multiparty negotiating process and
enshrined in Schedule 4 of the interim Constitution. A significant number
of these principles dealt with the structure of government. They provided in
this respect that:
• government shall be structured at national, provincial and local levels 8
• the powers and functions of the various spheres had to be defined in the
final Constitution and that they could not be substantially less or
substantially inferior to those provided for in the interim Constitution 9
• the functions of the national and provincial levels of government had to
include exclusive and concurrent powers 10
• the allocation of a competence to either the national or provincial spheres
had to be in accordance with listed criteria 11
• the national sphere was precluded from exercising its powers so as to
encroach on the geographical, functional and institutional integrity of the
provinces 12
• disputes concerning legislative powers allocated by the Constitution
concurrently to the national and provincial spheres had to be resolved by
 a court of law.13
A framework dealing with powers, function and structures of local
government also had to be set out in the Constitution.14 In addition, every
sphere of government had to be guaranteed an equitable share of revenue
collected nationally to ensure that provinces and local government were
able to provide basic services and execute the functions allocated to
them.15
In Certification of the Constitution of the Republic of South Africa, 1996,
the Constitutional Court held that the question of whether the powers and
functions allocated to the provinces were substantially less or substantially
inferior to those provided for in the interim Constitution was the most
difficult question it had to deal with.16 After evaluating the allocation of
the powers to various spheres of government and assessing the breadth of
the override clause that allows for national legislation to prevail over
provincial legislation in certain instances, the Court concluded that the
diminution in provincial power was substantial and that this was
inconsistent with Constitutional Principle XVIII.17 This required the
drafters to reorder the arrangements, afford more powers to the provinces
and restrict the scope of the override clause before it met the approval of the
Court. In Certification of the Amended Text of the Constitution of The
Republic Of South Africa, 1996, the Constitutional Court found that the
revised override clause (section 146) was more stringently drafted and
removed any presumption in favour of national legislation.18 This, together
with the adjustment of the allocation of powers to the provinces, satisfied
the Court that the amended text complied with Constitutional Principle
XVIII.
We discuss the exact allocation of powers to the various spheres of
government and the override clauses applying when there is a conflict
between the spheres of government in detail below.

8.1.4 The principles of co-operative government

As we noted in the introduction to this chapter, an important characteristic
of the Constitution is that it not only divides power vertically between the
legislative, executive and judicial branches of government, but also
horizontally between the national, provincial and local spheres of
government and that this horizontal division of power follows an integrated
model.19
An important consequence of the integrated model adopted by the
drafters of the Constitution is that mechanisms must be put in place to
regulate the overlap of power between the various spheres of government.
The principle of co-operative government plays an important role in
regulating the overlap of power between the various spheres of government.
To understand fully this principle of co-operative government, it is
necessary to set out the basic structure according to which power is divided
beween the three spheres of government. It is to this basic structure that we
now turn.
First, the nine provincial governments share the power to make laws on a
wide range of important matters with the national government. Schedule 4
of the Constitution sets out these shared or concurrent matters that include
important matters such as education, the environment, health, housing and
policing.20
Second, in so far as the concurrent powers of the national and provincial
governments are concerned, the national and provincial governments have
equal law-making powers. If the laws made by the national and provincial
governments conflict with each other, the national law will override the
provincial law, but only if the national law satisfies the criteria set out in
section 146 of the Constitution.21
Third, apart from their concurrent powers, provincial governments also
have the exclusive power to make laws on the matters set out in Schedule 5
of the Constitution. These exclusive powers deal with relatively
unimportant matters such as abattoirs, ambulance services and libraries
other than national libraries. Despite the fact that these Schedule 5 powers
have been exclusively reserved for provinces, section 44(2) of the
Constitution provides that the national government may intervene and pass
a law on a Schedule 5 matter if it is necessary to achieve the objectives set
out in section 44(2) itself.
Fourth, local government has been given the authority to make by-laws
for the effective administration of the matters they have the power to
administer. These local government matters are set out in Part B of
Schedule 4 and Part B of Schedule 5. By-laws which conflict with national
or provincial laws are invalid.22
Fifth, the laws that are made by the national government and that fall
into the broad areas of concurrent competence must be implemented and
administered by provincial and local governments. The primary role of
provincial and local governments, therefore, is the implementation and
administration of national laws.23
Last, the national government has the plenary power to pass laws and
administer laws on any other topic or subject matter not mentioned in either
Schedule 4 or 5. This means that the powers of provinces are explicitly
restricted to those functional areas set out in either Schedule 4 or 5, while
the powers of the national government are not restricted and can encompass
any matter not mentioned in Schedule 4 or 5.

PAUSE FOR REFLECTION

When the principles of co-operative government

become pivotal
This system that allocates important service delivery
powers to both the national sphere and the provincial
spheres of government can create governance challenges.
For example, the national government department is
required to oversee the basic education system and to
ensure the smooth running of schooling in the country.
However, each of the nine provincial departments of
education has to implement the broad policy objectives set
out by the national department and the national South
African Schools Act.24 But what happens if a provincial
department of education fails to implement these broad
policy objectives? What can a national Minister of
Education do if a provincial education department fails to
deliver textbooks to schools on time or when it fails to
 spend its capital budget to eradicate mud schools and pit
latrines which still exist in many schools in South Africa?
As we shall see, in extreme cases, the national
government can take over the running of a provincial
department if it fails to fulfil its constitutional and legal
obligations.25 But short of this, it is not clear how much
power the national Minister and his or her department will
have to ensure that the money allocated for basic
education to each province is spent effectively and in
accordance with the broad policy directives set out by the
national department. It is for this reason that the principles
of co-operative government set out in Chapter 3 of the
Constitution become pivotal as they require the national
government department and the provincial government
departments to meet regularly and to co-operate with one
another. Even when different political parties govern
nationally and in some of the provinces, these
governments at national and provincial level are required
by these provisions to co-operate with one another to
ensure the effective implementation of national policies.

Given the overlap between the legislative and executive authority of the
national, provincial and local spheres of government, the Constitution
makes provision for a system of intergovernmental co-ordination to manage
any potential conflict between the various spheres exercising concurrent
competences. This forms the heart of the system of co-operative
government. The most important rules governing this system are set out in
Chapter 3 of the Constitution. Chapter 3 of the Constitution entrenches the
notion of co-operative government which recognises the distinctiveness,
interdependence and interrelatedness of the national, provincial and local
spheres of government.26
All spheres of government – national, provincial and local – are required
to observe and adhere to the principles of co-operative government set out
in Chapter 3 of the Constitution.27 Particularly important in this context are
the principles set out in section 41. This section provides, inter alia, that
‘[a]ll spheres of government and all organs of state within each sphere’
must:
• respect the constitutional status, institutions, powers and functions of
government in the other spheres 28
• not assume any power or function except those conferred on them in
terms of the Constitution 29
• exercise their powers and perform their functions in a manner that does
not encroach on the geographical, functional or institutional integrity of
government in another sphere 30
• co-operate with each other in mutual trust and good faith.31
In addition, Chapter 3 of the Constitution also provides that an organ of
state involved in an intergovernmental dispute must make every reasonable
effort to settle the dispute by means of mechanisms and procedures
provided for that purpose, and must exhaust all remedies before
approaching a court of law to settle the dispute.32 There has been some
confusion about which bodies are bound by these provisions. Do they apply
only to those organs of state that exercise legislative and executive power in
the national, provincial and local spheres of government or do they also
apply to those organs of state that are supposed to be independent such as
the Electoral Commission, the National Prosecuting Authority (NPA)and
the South African Human Rights Commission (SAHRC)?
After some ambivalence, there is now relative certainty as to the bodies
bound by Chapter 3. In Independent Electoral Commission v Langeberg
Municipality,33 the Constitutional Court held that the Independent Electoral
Commission (IEC) is an organ of state as defined in section 239 of the
Constitution. However, it is not part of government as it is not an organ of
state in the national sphere of government. Chapter 9 entrenches the
independence of the institutions identified in this Chapter and hence these
institutions cannot simultaneously be independent of and yet part of
government.34 Thus, a dispute between a Chapter 9 institution and an organ
of government cannot be regarded as an intergovernmental dispute
requiring compliance with Chapter 3. The Court stated that while it is
preferable for organs of state not to litigate against each other readily, there
was no obligation on Chapter 9 institutions to follow the prescripts of
Chapter 3.35
In Uthukela District Municipality and Others v President of the Republic
of South Africa and Others, the Constitutional Court confirmed that
municipalities are organs of state in the local sphere of government while
the President and the national Ministers are organs of state in the national
sphere.36 Thus, a dispute involving these spheres would, prior to being
referred to court, have to comply with Chapter 3. For these purposes, the
provincial executive cannot be distinguished from the national executive
and the provincial executive will be regarded as an organ of state in the
provincial sphere.
The essence of Chapter 3 was described by the Constitutional Court as
requiring that disputes ‘where possible be resolved at a political level rather
than through adversarial litigation’.37 In Uthukela, the Court held that it
will rarely decide an intergovernmental dispute ‘unless the organs of State
involved in the dispute have made every reasonable effort to resolve it at a
political level.’ 38 The Court held that the duty to avoid legal proceedings
placed a two-fold obligation on all organs of state. They had to make every
reasonable effort to settle the dispute through the mechanisms provided and
to exhaust all other remedies before they approached the courts.39 The
Court will decline to hear the matter if there is a failure to comply with this
obligation. In effect, the matter will be referred back to the parties to
comply with their obligations in terms of Chapter 3.

8.1.5 Intergovernmental co-ordination

To avoid conflicts between the national, provincial and local spheres of
government, especially in so far as their concurrent powers are concerned,
the Constitution establishes or provides for the establishment of co-
ordinating bodies. Some of these bodies are responsible for co-ordinating
the legislative activities of the three spheres of government and others for
co-ordinating the executive activities of government.
The responsibility for co-ordinating the legislative activities of the
different spheres of government has been vested in the National Council of
Provinces (NCOP). This is because each province, as well as organised
local government, is represented in the NCOP. Given that we have already
discussed the NCOP, however, we will not dwell on the manner in which it
co-ordinates the legislative activities of the three spheres of government
here. Instead, we will focus on those bodies that have been established by
the Intergovernmental Relations Framework Act (IGRFA) 40 to co-ordinate
the executive activities of the different spheres of government.
The IGRFA was passed to establish structures to promote and facilitate
intergovernmental relations and to provide mechanisms to settle
intergovernmental disputes. The provisions of the IGRFA do not apply to
conflicts between the national and provincial legislatures.41 These conflicts
have to be resolved in accordance with section 146 of the Constitution. As a
consequence of the Langeberg case, all Chapter 9 institutions and other
independent institutions fall outside the scope of the Act. Finally, as the
courts are independent, they too are not bound by the provisions of the
IGRFA.
The purpose of the IGRFA is to provide a framework for the various
spheres of government and organs of state within those spheres to facilitate
co-ordination in the implementation of policy and legislation.42 These
include the provision of coherent government, the effective provision of
services, the monitoring of implementation of policy and the realisation of
national priorities.43 To help achieve this purpose, the IGRFA creates a
number of co-ordinating forums. Among the most important of these are the
President’s Co-ordinating Council,44 National Intergovernmental
Forums,45 the Premiers’ Intergovernmental Forum 46 and District
Intergovernmental Forums.47

PAUSE FOR REFLECTION

Co-operative intergovernmental relations or

coercive intergovernmental relations?
 Steytler draws a distinction between co-operative
intergovernmental relations and coercive
intergovernmental relations.48 He argues that while the
Constitution envisages a system of co-operative
intergovernmental relations, statutes such as the IGRFA
lean more in the direction of a system of coercive
intergovernmental relations dominated by the national
sphere of government. This leads him to the conclusion
that South Africa currently operates as an integrated
federal state that utilises a coercive form of
intergovernmental relations. In other words, while the
national sphere is obliged to co-operate with the other
spheres, it also dominates them.

In some instances, organs of state have to act in conjunction with other

organs of state to carry out their statutory and constitutional responsibilities
or to provide effective service delivery. The IGRFA requires that in these
instances, implementation protocols must be agreed on by the various
participating organs of state.49 Among various objectives, the
implementation protocols must:
• identify the roles and responsibilities of each organ of state in
implementing policy and carrying out its statutory functions
• provide for aims and objectives of the project
• determine indicators to measure the attainment of the objectives
• provide for monitoring and evaluation mechanisms
• provide for dispute-resolving procedures
• determine the duration of the protocol.50
One of the most important objectives of the IGRFA is to set in place
mechanisms to deal with intergovernmental disputes. The IGRFA does not
apply to disputes concerning interventions in terms of sections 100 and 139
of the Constitution.51 Any intervention in terms of these sections must
satisfy the procedural and substantive constraints built into these sections.
 An intergovernmental dispute is defined as a dispute between different
spheres of government or between organs of state from different spheres
concerning matters arising from statutory powers or functions assigned to
them or from an agreement between the parties regarding the
implementation of their statutory powers. In addition, the issue must be
justiciable in a court of law.52
The definition is wide and covers disputes that arise as a consequence of
the various parties exercising their statutory power. This would include
disputes about which party is responsible for paying for the services
provided and which party should provide particular services. In addition,
disputes may arise as a consequence of an agreement entered into by the
parties in furtherance of a joint mandate. The IGRFA imposes a direct duty
to avoid intergovernmental disputes.53 This duty involves taking
reasonable steps both to avoid intergovernmental disputes and to settle
intergovernmental disputes that arise without resorting to judicial
proceedings. The IGRFA prescribes various steps which must be followed
as a prerequisite to taking legal proceedings.
As a first step, the parties must try to settle the dispute through direct
negotiations or through an intermediary. If this is unsuccessful, then one of
the parties may declare a formal intergovernmental dispute by notifying the
other party of this in writing.54
After a formal intergovernmental dispute has been declared, the parties
are obliged to convene a meeting to determine the precise issues that are in
dispute, the material issues that are not in dispute and any mechanisms and
procedures, other than judicial proceedings, that are in place and which can
resolve the dispute. The parties are also required to agree on appropriate
mechanisms to settle the dispute and to designate a person to act as a
facilitator.55
If the meeting is not convened and if the dispute involves a national
organ of state, the Minister responsible for provincial and local government
must convene the meeting.56 Similar responsibilities rest on the MEC for
local government in respect of disputes involving provincial organs of state
and local government or municipal organs of state.
 The IGRFA assigns specific responsibilities to the facilitator.57 The
main mandate is to settle the dispute in any manner necessary and to
provide progress reports to the relevant parties. The attempts to settle and
the contents of the progress reports are deemed to be privileged documents
and may not be used in judicial proceedings. Importantly, no organ of state
may institute proceedings to settle an intergovernmental dispute unless it
has been declared a formal intergovernmental dispute and efforts made to
settle the dispute have proved to be unsuccessful.

8.2 The division of legislative and

executive power between the national and
provincial spheres of governments

8.2.1 Introduction
The division of legislative and executive authority between the three
spheres of government is one of the key features of the system of
multisphere government adopted in the Constitution. In this part of the
chapter, we discuss the division of legislative and executive authority
between the national and provincial spheres of government. Although there
is a large overlap between the matters over which each sphere has, first,
legislative authority and, second, executive authority, these matters are not
necessarily identical. For example, additional administrative powers may be
delegated to provincial executives by the national legislature.58 This would
empower provincial executives to exercise administrative powers in terms
of such legislation even though the provincial legislatures may not be
empowered to legislate on that matter. Nevertheless, to a large degree,
provincial executives have authority over the same subject matter as
provincial legislatures. Unless indicated otherwise, we will deal with these
matters as if they overlap. Before discussing this further, however, it will be
helpful to discuss briefly the objectives and structure of provincial
government.
8.2.2 The objectives and structure of provincial
government
South Africa is divided into nine provinces, namely the Eastern Cape, Free
State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern
Province, North West and Western Cape.59 The Constitution regulates the
governance of the provinces in Chapter 6 and sets out the structure, powers
and functions of the provincial legislatures 60 as well as the provincial
executive authorities.61 Judging from the structure and powers bestowed by
the Constitution on the nine provinces, provinces are required to fulfil at
least three important interrelated but distinct functions:
• First, provinces provide a close link between voters and their
government to ensure that the government addresses the particular
concerns and unique challenges and needs of discrete geographical areas.
• Second, provinces are required to implement national policies and plans
relating to important service delivery areas such as housing, health care,
policing and education.
• Third, provinces must oversee the smooth running of the local sphere of
government within the boundaries of the province.
To a large extent the structures and functions of the nine provinces mirror
one another. Each province is entitled to pass a provincial constitution,62
and the Western Cape Province has indeed done so.63 However, such a
constitution cannot bestow substantially more powers on a province or
deviate from the basic structure of governance of the province as set out in
the national Constitution.64 The constitution-making power is not a power
to constitute a province with powers, functions or attributes in conflict with
the overall constitutional framework established by the national
Constitution. The provinces remain creatures of the national Constitution
and cannot, through their provincial constitution-making power, alter their
character or their relationship with the other levels of government.65 When
discussing the structure and functioning of provinces, we shall therefore
focus on the provisions of the 1996 Constitution only.
The legislative authority of each province is vested in its provincial
legislature. The provincial legislature has the legislative power to pass a
provincial constitution and to pass legislation for its province with regard to
any matter:
• within a functional area listed in Schedule 4 66
• within a functional area listed in Schedule 5 67
• outside those functional areas and that is ‘expressly assigned’ to the
province by national legislation 68
• for which a provision of the Constitution ‘envisages’ the enactment of
provincial legislation.69
A provincial legislature may also assign any of its legislative powers to a
municipal council in that province.70 In addition, the legislature of a
province may change the name of that province by adopting a resolution
with a supporting vote of at least two-thirds of its members, requesting
Parliament to change the name of that province.71
Apart from the legislative powers set out above, the Constitution also
provides that provincial legislation with regard to any matter that is
reasonably necessary for, or incidental to, the effective exercise of a power
concerning any matter listed in Schedule 4, is for all purposes legislation
with regard to a matter listed in Schedule 4.72
The members of provincial legislatures are elected in accordance with
the same electoral system that applies to the election of members of the
National Assembly (NA). The size of each of the legislatures is determined
in terms of a formula prescribed by national legislation relating to the
population size of that province, but cannot be smaller than 30 and no larger
than 80 members.73 The Western Cape legislature’s size is determined by
the Western Cape Constitution.74 The requirements for membership of
provincial legislatures, as well as the loss of membership, are identical to
those prescribed for the NA.75 Provincial legislatures are also elected for a
term of five years and can be dissolved before the expiry of that term for
exactly the same reasons as those that apply to the NA.76
As we may recall, a province’s permanent delegates to the NCOP are not
members of the provincial legislature. However, such permanent delegates
to the NCOP may attend and may speak in their provincial legislature and
its committees, but may not vote. The legislature may require a permanent
delegate to attend the legislature or its committees.77 The rules regarding
the functioning of provincial legislatures also mirror those prescribed for
the NA.
The executive authority of a province is vested in the Premier of that
province, whose role mirrors that of the President at national level.
Obviously, though, Premiers do not enjoy the head of state powers
bestowed on the President by section 84 of the Constitution. The Premier
exercises executive authority, together with the other members of the
Executive Council, by:
• implementing provincial legislation in the province
• implementing all national legislation in the functional areas listed in
Schedule 4 or 5 except where the Constitution or an Act of Parliament
provides otherwise
• administering in the province national legislation outside the functional
areas listed in Schedules 4 and 5, the administration of which has been
assigned to the provincial executive in terms of an Act of Parliament
• developing and implementing provincial policy
• co-ordinating the functions of the provincial administration and its
departments
• preparing and initiating provincial legislation
• performing any other function assigned to the provincial executive in
terms of the Constitution or an Act of Parliament.78
Over and above the explicit powers bestowed on the Premier and his or her
executive, they also enjoy any additional powers that have been bestowed
on them by the national legislature.
A province has executive authority in terms of those functional areas
listed in Schedules 4 and 5 of the Constitution, but ‘only to the extent that
the province has the administrative capacity to assume effective
responsibility’.79 The Constitution enjoins the national government to
assist provinces to develop the administrative capacity required for the
effective exercise of their powers and performance of their functions
through legislative and other measures.80 Any dispute concerning the
administrative capacity of a province in regard to any function must be
referred to the NCOP for resolution within 30 days of the date of the
referral to the Executive Council.81 A member of the Executive Council of
a province may assign any power or function that is to be exercised or
performed in terms of an Act of Parliament or a provincial Act to a
municipal council. An assignment must be in terms of an agreement
between the relevant Executive Council member and the municipal council.
It must be consistent with the Act in terms of which the relevant power or
function is exercised or performed, and it takes effect on proclamation by
the Premier.82
Premiers are elected by the provincial legislature.83 Premiers can also be
removed in two ways:
• First, Premiers can be impeached in terms of section 130(3) of the
Constitution for a serious violation of the Constitution or the law, serious
misconduct or inability to perform the functions of office.
• Second, in terms of section 141 of the Constitution, a provincial
legislature may remove a Premier for purely political reasons by
instituting a motion of no confidence in the Premier.

PAUSE FOR REFLECTION

The division and demarcation of legislative

competences between the national and
provincial spheres
Unlike Parliament, which has plenary legislative powers,
the provincial legislatures have limited legislative powers.
The limited nature of the provincial legislatures’ legislative
powers was highlighted by the Constitutional Court in its
judgment in Premier: Limpopo Province v Speaker of the
Limpopo Provincial Legislature and Others.84
The facts of this case were as follows. In 2009, the
Limpopo Provincial Legislature passed the Financial
Management of the Limpopo Provincial Legislature Bill,
2009. The purpose of this Bill was to regulate the financial
management of the Limpopo Provincial Legislature itself.
After the Limpopo Provincial Legislature had passed this
Bill, it was referred to the Premier of Limpopo for his assent
and signature. The Premier, however, had reservations
about the constitutional validity of the Bill and refused to
assent to it. Acting in terms of section 121 of the
Constitution, the Premier referred the Bill back to the
Provincial Legislature and, after the Provincial Legislature
had failed to address his concerns, to the Constitutional
Court for a decision on its constitutional validity.85
The Premier’s reservations were based on the fact that
the financial management of a provincial legislature is not
listed as a functional area in either Schedule 4 or
Schedule 5 of the Constitution. This meant he argued that
the Bill fell outside the Provincial Legislature’s legislative
competence.
The Provincial Legislature accepted that financial
management of a provincial legislature is not listed as a
functional area in either Schedule 4 or Schedule 5. It
argued, however, that the Bill did fall into its legislative
competence because the power to pass legislation
regulating the financial management of a provincial
legislature has been ‘expressly assigned’ to the provinces
by the Financial Management of Parliament Act.86 In
addition, the Provincial Legislature argued further, the
power to pass legislation regulating the financial
management of a provincial legislature was ‘envisaged’ by
sections 195, 215 and 216 the Constitution.87 Section 195
deals with the basic values and principles governing public
administration. Section 215 deals with the national,
provincial and municipal budgets and section 216 indicates
the nature of treasury controls that must be implemented.
A majority of the Constitutional Court rejected both these
arguments and came to the conclusion that the Bill did not
fall into the legislative competence of the Limpopo
Provincial Legislature. It was, therefore, unconstitutional
and invalid.
In arriving at this conclusion, the Constitutional Court
pointed out that the defining feature of our constitutional
scheme for the allocation of legislative powers between
Parliament and the provinces is that the legislative powers
of the provinces are enumerated and clearly defined, while
those of Parliament are not.88 The plenary power that
resides in Parliament is therefore contrasted with the
limited powers that have been given to provincial
legislatures.89 An important consequence of this feature,
the Constitutional Court pointed out further, is that a
provincial legislature may pass legislation only on:
• those matters set out in Schedule 4
• those matters set out in Schedule 5
• those that have been ‘expressly assigned’ to the
provinces by national legislation
• those in respect of which a provision of the Constitution
‘envisages’ the enactment of provincial legislation.90
The general scheme of the Constitution, the Constitutional
Court went on to point out, was aimed at ensuring that the
legislative authority of the provinces is clearly identified.91
In addition to the competences directly articulated in
Schedules 4 and 5, the Constitution specifically requires
that additional competences are ‘expressly assigned’ by
national legislation to the provinces or are ‘envisaged’ by a
provision of the Constitution.92
After setting out these principles, the Constitutional
Court turned to consider whether the Financial
Management of Parliament Act has expressly assigned the
financial management of a provincial legislature to the
provinces. In this respect, the Constitutional Court noted
that the word ‘expressly’ must be interpreted as part of the
objective to ensure that provincial competences are clearly
identified. This meant, the Court noted further, that the
national legislation assigning the additional powers must
leave no doubt of its intent and must clearly stipulate the
nature and scope of the powers assigned. The reason why
the national legislation assigning the additional powers
must leave no doubt of its intent, the Constitutional Court
went on to note, is because it will provide reasonable
certainty as to the areas of competence of the provincial
legislatures.93
Clarity as to the nature and extent of the power assigned
will advance co-operative government which has, as one of
its guiding principles, that no sphere will assume any
power or function except those conferred in terms of the
Constitution. This clarity, the Constitutional Court also held,
would prevent disputes and inform the public as to which
sphere has competence over the particular matter.94
The Court suggested that the preamble and the
objectives of the enabling legislation should make the
intent clear and unequivocal.95 The Court concluded that if
the assignment is merely implied as opposed to express, it
will fail to comply with the requirements of the Constitution
regarding the assignment of legislative authority.96
Having found that the Financial Management of
Parliament Act did not expressly assign the financial
management of a provincial legislature to the provinces,
the Constitutional Court turned to consider whether the
power to pass legislation regulating the financial
management of a provincial legislature was ‘envisaged’ by
sections 195, 215 and 216 of the Constitution.97 In
keeping with the theme of maximum clarity in respect of
the allocation of legislative powers to the various spheres,
the Constitutional Court also adopted a restrictive
approach to this argument. It held that only those
provisions of the Constitution which in clear, unequivocal
and express terms sanctioned the enactment of provincial
legislation fell under this section.98 The Constitutional
Court stated that the power had to be expressly assigned
and not merely implied. To do otherwise would, in the view
of the Court, undermine the principle of certainty and
adversely affect the constitutional scheme.99 The Court
identified section 155(5) of the Constitution as an example
of such express assignment. This section provides that
provincial legislation must determine the different types of
municipalities to be established in the province.100 On the
facts, the Constitutional Court concluded that the sections
of the Constitution relied on by the provincial legislature did
not in clear and unmistakeable terms envisage the
enactment by the provincial legislature of this law.101
In their dissenting judgments, the minority of the
Constitutional Court disagreed with the manner in which
the majority interpreted the word ‘envisages’. The word
‘envisages’, the minority reasoned, must mean something
different from the phrase ‘expressly assigned’.102 If they
meant the same thing, the drafters of the Constitution
would not have used different words. The word ‘envisages’,
the minority reasoned further, means something less than
‘expressly assigned’, but not much less.103 ‘It must appear
that the relevant provisions of the Constitution read in
context lead to no conclusion but that the Constitution
contemplates the exercise of the power by the provincial
legislature and that the Constitution could mean nothing
else’.104 After setting out these principles, the minority
turned to apply them to the facts and found that the power
to pass legislation regulating the financial management of
a provincial legislature was ‘envisaged’ by sections 195,
215 and 216 of the Constitution.105
 The case represents an attempt to have reasonable
certainty in respect of the division and demarcation of
legislative competences between the national and
provincial spheres. The constitutional scheme vests the
residual legislative powers in the national sphere and
makes specified allocations to the provincial legislatures.
The Court did not permit the boundaries to be blurred and
insisted that the provinces can only legislate in respect of
functional areas falling within Schedules 4 and 5, or if
national laws clearly assign further function to the
provinces, or if the Constitution expressly assigns power to
the provinces to legislate on specified matters.106

8.2.3 Determining legislative competence

As we have already seen, the legislative powers bestowed on Parliament
overlap to some degree with the legislative powers bestowed on provincial
legislatures. One of the more difficult questions of South African
constitutional law is the exact relationship between the legislative powers of
the national Parliament in relation to the legislative powers of the provincial
legislatures. There are two distinct issues at play here:
• First, when dealing with concurrent competences listed in Schedule 4,
both the national legislature and the provincial legislatures are
empowered to pass legislation on a particular topic. When both the
national legislature and a provincial legislature have passed legislation
on a particular concurrent competence set out in Schedule 4, both the
national and the provincial legislation will have been validly passed.
However, as we shall see, where there is a direct conflict between the
provisions of national legislation and provincial legislation, the
provisions of the provincial legislation will prevail unless one or more of
the requirements of section 146 of the Constitution is met in which case
the national legislation will prevail.107 We shall deal with the rules
relating to such clashes below.
• Second, usually only provincial legislatures can pass legislation dealing
with one or more of the exclusive competences listed in Schedule 5.
 However, in exceptional cases set out in section 44(2) of the
Constitution, the national Parliament may intervene and pass legislation
listed in Schedule 5. We shall deal with this below.
At this point it is important to note that the division of legislative authority
between the national, provincial and local spheres of government imposes
important federalist limits on the power of each sphere of government to
legislate. At the heart of these limits lies the principle that each sphere may
not adopt legislation that falls outside its legislative authority. Legislation
passed by a legislature in a particular sphere, therefore, may be challenged
on the ground that it does not fall into the legislature’s authority. Whenever
a person challenges legislation on the ground that it does not fall into a
legislature’s authority, a court will have to determine whether the legislature
in question was competent to pass the legislation. There are two distinct
questions that arise whenever there is uncertainty whether the legislature of
one sphere of government is competent to pass legislation on a specific
topic:
• First, there is a need to decide whether the impugned legislation deals
with a topic listed in Schedule 4 or Schedule 5. Our courts have
developed a special test for this which we will discuss below.
• Second, once we have determined whether the legislation falls within
Schedule 4 or 5, we must ask whether the relevant legislature was
authorised to pass the legislation as a matter of course or in terms of
section 44(2) or section 146 of the Constitution.
The Constitutional Court considered the manner in which a court must
determine whether a piece of legislation has been competently enacted by
either the national legislature or by one of the provincial parliaments (or
both) in several cases, including in Ex Parte President of the Republic of
South Africa: In re Constitutionality of the Liquor Bill.108
In this case, the national legislature passed the Liquor Bill which sought
to regulate comprehensively the liquor industry. The Bill divided the
economic activity of the liquor industry into three categories: manufacture,
distribution and retail sales. The Bill treated manufacture and distribution as
national issues and retail sales as provincial issues to be dealt with by
provincial liquor authorities. However, even in respect of retail sales, the
Bill prescribed detailed mechanisms as to how the provincial legislatures
should establish their retail licensing systems.
The Western Cape government, then controlled by the New National
Party, challenged the constitutionality of the Bill by arguing that it
exhaustively regulated issues concerning manufacture and distribution and
that even in the retail sphere, it relegated the provinces to the role of funders
and administrators. Parliament contended that the Bill primarily dealt with
trade, economic and social welfare issues, which are concurrent
competences. The Western Cape provincial government argued that the Bill
dealt with liquor licences, an exclusive competence of the province in terms
of Schedule 5. The Bill, in fact, affected both concurrent and exclusive
provincial competencies.
The Constitutional Court emphasised that under the post-apartheid
constitutional developments, governmental power is not located in the
national sphere alone.109 Legislative authority is vested in Parliament for
the national sphere, in the provincial legislature for the provincial sphere
and in municipal councils for the local sphere.110 Any interpretation must
recognise and promote the philosophy of co-operative government at
various levels.111 However, given the breadth of the competencies listed in
the various Schedules, their parameters of operation will, of necessity,
overlap.112
The Constitutional Court pointed out (as we have done above) that the
Constitution allows for provincial exclusivity in respect of matters falling
within Schedule 5, subject to an intervention by the central sphere that is
justified in terms of section 44(2) of the Constitution. This, argued the
Court, meant that the functional competencies in Schedule 4 should be
interpreted as being distinct from, and excluding, Schedule 5
competencies.113 The Court found that the primary purpose of Schedule 4
is to enable the national government to regulate various issues
interprovincially (between all the provinces).114 Conversely, the provinces,
whose jurisdiction is confined to their geographical territory, are accorded
exclusive powers in respect of matters that may be regulated
intraprovincially (exclusively within the province).115
 The main substance and character of the legislation determines the field
of competence in which it falls. A single piece of legislation may have
various parts and more than one substantive character.116 According to this
reasoning, the Court concluded that the national sphere has the power to
regulate the liquor trade in all respects other than liquor licensing. The
manufacture and distribution segments of the legislation affect
interprovincial as opposed to intraprovincial competencies.117 This would
suggest that the competence of liquor licensing in Schedule 5 was not
intended to encompass the manufacturing and distribution of liquor.118 In
any event, the Court was prepared to conclude that even if the provincial
competence in respect of liquor licences extends to licensing, production
and distribution, ‘its ( the central spheres) interest in maintaining economic
unity authorises it to intervene under section 44(2) of the Constitution’.119
However, the Court adopted a much stricter approach to the national
regulation in respect of retail sales. A relatively uniform approach to liquor
licensing in the country may be desirable but this did not amount to a
necessity that justified an intrusion into the exclusive provincial
competence. Thus, the Court deemed those aspects of the law that regulated
the manufacture and distribution of liquor constitutional and the segment of
the national law regulating the retail industry unconstitutional.120

CRITICAL THINKING

The substantial measure test versus the pith and

substance test for Bills
It is important to recall what we stated in chapter 3, namely
that there is a distinction between the test to determine
whether a Bill should be tagged and then passed as a
section 75 Bill not affecting provinces or a section 76 Bill
affecting provinces, and the test to determine whether a Bill
deals with a concurrent competence in terms of Schedule 4
or an exclusive provincial competence in terms of
Schedule 5. There is an important difference between the
 substantial measure test used to decide how to tag a Bill
and the pith and substance test used to determine whether
the subject matter of a Bill falls within Schedule 4 or
Schedule 5.
In terms of the pith and substance test, those provisions
of a Bill that fall outside its substance are treated as
incidental. In contrast, the tagging test is distinct from the
question of legislative competence. It focuses on all the
provisions of the Bill to determine the extent to which they
substantially affect functional areas listed in Schedule 4
and not on whether any of its provisions are incidental to its
substance. The more it affects the interests, concerns and
capacities of the provinces, the more say the provinces
should have on its content.121

Importantly, the Court endeavoured to remain faithful to the structure of the

Constitution. Had the Court interpreted the competence of ‘trade’ very
broadly, this would have provided an opportunity for the national legislature
to intervene in a variety of matters that fall under Schedule 5 such as liquor
licensing, control of undertakings that sell liquor, licensing and control of
undertakings that sell food to the public, markets and street trading. By
demarcating the boundary by reference to intra- and interprovincial
activities, the Court ensured that national intervention in respect of
Schedule 5 matters that apply intraprovincially must comply with
section 44(2) of the Constitution. A broad interpretation of the competences
listed in Schedule 4 would have ultimately negated the exclusive
competence of the provinces to legislate in respect of matters listed in
Schedule 5.122
Given that subject matter or the substance of legislation determines the
field of competence in which it falls, it is important to be able to identify
the subject matter or the substance of a law. The Constitutional Court
discussed the manner in which this may be done in Abahlali Basemjondolo
Movement SA and Another v Premier of the Province of Kwazulu-Natal and
Others.123
 In this case, the applicants, an association representing residents of
informal settlements, applied for an order declaring the Elimination and
Prevention of the Re-emergence of Slums Act,124 which had been passed
by the KZN Provincial Legislature, to be unconstitutional and invalid. They
based their application on a number of grounds, one of which was that the
KZN Provincial Legislature lacked the competence to pass this law. The
KZN Provincial Legislature lacked the competence to pass the Act, the
applicants argued, because it did not deal with housing. Housing is a
functional area of concurrent national and provincial competences listed in
Schedule 4. They argued that the Act dealt with land tenure and access to
land which, in terms of section 25 of the Constitution, is a functional area of
exclusive national competence.125
The key question the Constitutional Court had to determine, therefore,
was whether the subject matter or substance of the Act was housing, in
which case it would fall into the legislative competence of the KZN
Provincial Legislature, or whether it was land tenure and access to land, in
which case it would not fall into the legislative competence of the KZN
Provincial Legislature. When it comes to determining the subject matter or
substance of a law, the Constitutional Court held that two important
principles must be taken into account:
• First, the substance of the law does not depend on its form, but rather on
the true purpose, effect and essence of what the law is about.
• Second, no national or provincial legislative competence is watertight
and it is therefore important to determine the main substance of the
legislation in order to ascertain whether the provincial legislature has
legislative competence.126
After setting out these principles, the Constitutional Court applied them to
the facts. In this respect, the Court held that in determining the substance of
the Act it had to be considered as a whole.127 The preamble of the Act
identified the purpose of the legislation as being to eliminate and prevent
the re-emergence of slums in a manner that protects and promotes the
housing construction programmes of provincial and local governments.128
The Court found that the overall strategy of the Act was to eliminate slums
and to make provision for the progressive realisation of adequate housing
by improving service delivery and by generally improving the conditions
under which people are housed. It was not simply about eviction with no
regard for the consequences of rendering people homeless.129
The Court concluded that the Act was primarily about improving the
housing conditions of those living in slums in KZN.130 It was therefore
about housing and fell within the legislative competence of the
province.131 However, the majority of the court found that section 16 of
the Elimination and Prevention of the Re-emergence of Slums Act obliged
owners to institute eviction proceedings when directed to do so by the MEC
even if to do so would not be in accordance with the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act (PIE Act).132 The
majority found this to be inconsistent with section 25 of the Constitution
which seeks to provide greater security of tenure to communities whose
tenure is legally insecure as a result of past racially discriminatory laws.133
Thus, a full and complete appraisal of the law is required to determine
the substance of the legislation. This, in turn, assists with assessing whether
the law deals with a matter that falls under Schedule 4 or 5 or within the
exclusive competence of Parliament. Once this determination has been
made, then clarity can be obtained as to which legislative body has
competence over the matter.

8.2.4 The resolution of conflicts between the national

and provincial spheres

8.2.4.1 Conflicts related to concurrent competences set out

in Schedule 4
As stated earlier, both the national and provincial legislatures possess power
to legislate concurrently over the functional areas contained in Schedule 4.
Affording concurrent legislative responsibilities over the same functional
areas to different legislatures can lead to conflicting laws being enacted
over the same subject matter. For instance, education is a concurrent
function and thus both the national and provincial legislatures have
jurisdiction to pass laws in respect of this competence. Provisions of a law
passed by the national legislature on education may conflict with provisions
of a law passed by a provincial legislature on the same subject matter. It is
thus imperative for the Constitution to anticipate such conflicts and to
include provisions that seek to resolve conflicts between laws dealing with
the same subject matter and which are passed by the different legislatures.
Section 146 of the Constitution provides a framework in terms of which
these conflicts are to be resolved. It has been suggested that conflicts
between central and provincial laws are dealt with by reference to the
following enquiries: 134
• Does the central legislature have the legislative competence to pass its
law?
• Does the provincial legislature have the legislative competence to pass
its law?
• If both legislatures have the legal competence to pass the laws, then the
issue would be whether the different laws can be reconciled.
• If there is an irreconcilable conflict, then the central law will prevail if
the provisions of section 146 of the Constitution are satisfied.
• If the provisions of section 146 of the Constitution are not met, then the
provincial law will prevail.
Thus, the first question is whether the legislative body possesses the
constitutional power to legislate over the matter. If the response is that the
provincial legislature, as in the case of the Premier: Limpopo, or
Parliament, as in Executive Council of the Western Cape Legislature and
Others v President of the Republic of South Africa and Others,135 does not
possess the authority to legislate, then that is the end of the enquiry. The
legislative body lacking the power cannot constitutionally legislate and
therefore there is no need to determine whether national law should prevail
or provincial law or vice versa. It is only if both national and provincial
legislatures have the power to legislate and do so that attempts must be
made to reconcile the laws. If the laws cannot be reconciled, section 146 of
the Constitution must then be applied to determine which law should
prevail.
If any one of the criteria listed in section 146 is met, the national law will
prevail.136 The provisions of section 146 can only be resorted to in respect
of conflicting laws dealing with a functional area listed in Schedule 4.137
Criteria permitting the central override are divided into two categories. If
one of the criteria listed either in section 146(2) or 146(3) is satisfied, then
the conflicting provincial law is rendered inoperative for the period of the
conflict.138 If, for some reason, the conflicting national law is repealed, the
provincial law that had been rendered inoperative as a result of the
application of section 146 will again be operative. All the criteria listed in
section 146(2) are subject to the additional requirement that the central
legislation must apply uniformly to the country as a whole. Thus, a national
law that targets a particular province will not prevail in terms of
section 146(2).
In terms of section 146(2), central law will prevail if any one of the
following three conditions is established:
• The central legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the respective provinces
individually.139
• The central legislation deals with a matter that, to be dealt with
effectively, requires uniformity across the nation, and national legislation
provides that uniformity by establishing norms and standards,
frameworks or national policies.140
• The central legislation is necessary for the maintenance of national
security; the maintenance of economic unity; the protection of the
common market in respect of the mobility of goods, services, capital and
labour; the promotion of economic activities across provincial
boundaries; the promotion of equal opportunities or equal access to
government services; or the protection of the environment.141

In Mashavha v President of the Republic of South Africa and Others,142

the Constitutional Court had to consider the constitutionality of the
President assigning to the provinces the administration of the Social
Assistance Act 143 in its entirety. In terms of the interim Constitution, the
President could only assign the administration of the Act to the provinces if
the provisions of section 126(3) of the interim Constitution 144 were not
applicable.
 The Court found that the assignment was invalid as the administration
dealt with a matter that could not be regulated effectively by separate
provincial legislation. For the administration of social welfare grants to be
administered fairly and equitably, it needed to be regulated or co-ordinated
by uniform norms or standards that applied throughout the Republic.145 To
achieve equity and effectiveness, it was necessary to set minimum standards
across the nation.146 The primary objection of the Court was that if
Gauteng, the richest province in the country, paid a higher old-age pension
than Limpopo, then the dignity of people in Limpopo would be offended as
different classes of citizenship would be created.147 Thus, to prevent
inequality and unfairness in the provision of social assistance to people in
need, uniform norms and standards had to be applicable throughout the
country.148
In terms of section 146(3) of the Constitution, national law will prevail
over provincial law if it is aimed at preventing unreasonable action by a
province that is prejudicial to the economic, health or security interests of
another province or the country as a whole, or impedes the implementation
of national economic policy.

PAUSE FOR REFLECTION

When is section 146 invoked?

It is important to note that conflicts only arise and
section 146 will only be invoked when one or more of the
specific legal provisions in a provincial Act cannot be
obeyed at the same time as one or more of the provisions
in a national Act. It is also important to remember that as
both the national and provincial spheres have legislative
competence over these matters, the provisions that conflict
do not become invalid. All that happens is that section 146
is used to decide whether the provisions of the provincial
Act will prevail or whether the conflicting provisions of the
national Act will prevail. The provisions of the Act that do
 not prevail will remain in limbo. If the conflicting provisions
of the Act that prevails are scrapped, the provisions of the
conflicting Act will be ‘resurrected’, so to speak, and will
again become operational.
For example, if both the national Parliament and the
Western Cape Provincial Parliament pass legislation
dealing with the regulation of the use of blue-light brigades
by politicians, both will have the legislative power to pass
such legislation as Schedule 4 states that road traffic
regulation is a concurrent competence. If there is a direct
clash between the provisions of the Western Cape law and
the provisions of the national law, say the national law
allows all politicians to use blue-light convoys while the
Western Cape law prohibits this, then a court may have to
decide whether the national legislation prevails in terms of
section 146 of the Constitution. If the court finds that
section 146 is indeed applicable and that the provisions of
the national law would prevail, the prohibition contained in
the provincial law would become inoperable until such time
as the national law is amended or scrapped. If the court
finds that section 146 is not applicable, then the prohibition
contained in the provincial law against the use of blue-light
convoys by politicians will prevail, but only in the Western
Cape.

8.2.4.2 Conflicts related to exclusive provincial

competences in Schedule 5
Section 44(2) of the Constitution states that even though provincial
legislatures have the exclusive powers to pass legislation on one of the
functional areas listed in Schedule 5 of the Constitution, the national
Parliament may nevertheless intervene in areas listed in Schedule 5, but
only when it is necessary:
• to maintain national security
• to maintain economic unity
• to maintain essential national standards
• to establish minimum standards required for the rendering of services
• to prevent unreasonable action taken by a province which is prejudicial
to the interests of another province or to the country as a whole.
If Parliament does intervene and validly passes legislation on one of the
functional areas listed in Schedule 5, a conflict may arise between national
legislation and provincial legislation with respect to the matters listed in
Schedule 5. A conflict between national legislation and provincial
legislation with respect to these matters must be resolved in terms of
section 147(2) of the Constitution. This section provides that national
legislation referred to in section 44(2) of the Constitution prevails over
provincial legislation that falls with the functional areas listed in
Schedule 5.

8.3 The division of legislative and

executive power between the national and
provincial and local spheres of government

8.3.1 Introduction
As we have already seen, an important aspect of the Constitution is that it
distributes legislative and executive authority between the national,
provincial and local spheres of government. In the first part of this chapter,
we discussed the division of legislative and executive authority between the
national sphere of government, on the one hand, and the provincial spheres
of government, on the other. In this part of the chapter, we discuss the
division of legislative and executive authority between the national and
provincial spheres of government, on the one hand, and the local sphere of
government, on the other. Before doing so, however, it will be helpful to
discuss briefly the objectives and structure of local government.

8.3.2 The objectives of local government

The objectives of local government are set out in section 152(1) of the
Constitution. This section provides that the objectives of local government
are:
• to provide democratic and accountable local government for local
communities
• to ensure the provision of services to communities in a sustainable
manner
• to promote social and economic development
• to promote a safe and healthy environment
• to encourage the involvement of communities and community
organisations in the matters of local government.
In addition, section 153 of the Constitution also provides that a municipality
must:
• structure and manage its administration and budgeting and planning
processes to give priority to the basic needs of the community
• structure and manage its administration and budgeting and planning
processes to promote the social and economic development of the
community
• participate in national and provincial development programmes.
Despite the fact that these sections impose a wide range of obligations on
local government, the Constitutional Court held in Joseph and Others v City
of Johannesburg and Others that one of the most important objectives of
local government is to meet the basic needs of all of the inhabitants of
South Africa.149
To achieve this objective, the Constitutional Court held further that
sections 152 and 153 of the Constitution, read together with the Local
Government: Municipal Systems Act,150 impose an obligation on every
municipality to provide basic municipal services to their inhabitants, such
as water and electricity, irrespective of whether or not they entered in a
contract for the supply of these services with the municipality.151

PAUSE FOR REFLECTION

Municipalities derive their power from the
Constitution
The constitutional status of local government today is
radically different from what it was prior to the transition to
democracy in 1994. Prior to 1994, municipalities were at
the bottom of a hierarchy of law-making powers. This is
because they derived their existence and their powers from
provincial ordinances which, in turn, derived their existence
and powers from Acts of Parliament. An important
consequence of this fact is that municipalities were not
recognised or protected by the pre-1994 Constitution.
Instead, they were classified as mere administrative
agencies exercising delegated or subordinate powers. The
institution of elected local government could, therefore,
have been terminated at any time and its functions
entrusted to administrators appointed by the central or
provincial governments.
Today, however, as the Constitutional Court pointed out
in City of Cape Town and Other v Robertson and Other,152
the Constitution has moved away from this hierarchical
division of governmental power. It has ushered in a new
vision of government in which the sphere of local
government is interdependent, ‘inviolable and possesses
the constitutional latitude within which to define and
express its unique character’ subject to constraints
permissible under our Constitution.153
This means, the Constitutional Court pointed out further,
that:
[a] municipality under the Constitution is not a mere creature of
statute otherwise moribund save if imbued with power by
provincial or national legislation. A municipality enjoys ‘original’
and constitutionally entrenched powers, functions, rights and
duties that may be qualified or constrained by law and only to the
extent the Constitution permits. Now the conduct of a municipality
is not always invalid only for the reason that no legislation
 authorises it. Its power may derive from the Constitution or from
legislation of a competent authority or from its own laws.154

8.3.3 The structure of local government

Section 155 of the Constitution distinguishes between three different
categories of municipalities, namely category A municipalities, category B
municipalities and category C municipalities:
• A category A municipality has exclusive municipal executive and
legislative authority in its area and is referred to as a metropolitan
municipality in section 1 of the Local Government: Municipal Structures
Act.155
• A category B municipality shares its municipal executive and legislative
authority in its area with a category C municipality and is referred to as a
local municipality in section 1 of the Municipal Structures Act.
• A category C municipality has municipal executive and legislative
authority in an area which includes more than one municipality and is
referred to as a district municipality in section 1 of the Municipal
Structures Act.
Apart from distinguishing between category A (metropolitan), category B
(local) and category C (district) municipalities, section 155 of the
Constitution also provides that national legislation must establish the
criteria for determining when an area should have a single category A
municipality or when it should have municipalities of both category B and
category C. The national legislation referred to in this section is the
Municipal Structures Act. Section 2 of this Act provides that metropolitan
municipalities must be established in metropolitan areas, and section 3
provides that local and district municipalities must be established in all
other areas.
A metropolitan area is defined in section 1 of the Municipal Structures
Act as any area which reasonably can be regarded as a conurbation
featuring areas of high population density, intense movement of people,
goods and services, extensive development, multiple business districts and a
number of industrial areas. In addition, the social and economic linkages
between the constituent units should be strong.156 The power to determine
whether an area satisfies criteria and should therefore be classified as a
metropolitan area with a metropolitan municipality is vested in an
independent body known as the Municipal Demarcation Board. The
Municipal Demarcation Board is responsible for determining and re-
determining the boundaries of municipalities. Its powers and functions as
well as the procedure it must follow when it exercises it powers and carries
out its functions are set out in the Local Government: Municipal
Demarcation Act.157

PAUSE FOR REFLECTION

Why an independent authority must carry out the

task of determining municipal boundaries
Section 155(3)(b) of the Constitution declares that national
legislation must establish criteria and procedures for the
determination of municipal boundaries by an independent
authority. The independent authority referred to in this
section is the Municipal Demarcation Board. The
Constitutional Court highlighted the reasons why an
independent authority must carry out the task of
determining municipal boundaries in its judgment in
Matatiele Municipality and Others v President of the
Republic of South Africa and Others.158
In 2005, Parliament passed the Constitution Twelfth
Amendment Act and the Cross-Boundary Municipalities
Laws Repeal and Related Matters Act.159 In terms of
these laws, the boundary between KwaZulu-Natal and the
Eastern Cape was altered so that the area in which the
Matatiele Municipality was located was transferred from
KwaZulu-Natal to the Eastern Cape and new municipal
boundaries were created.
 The applicants then applied for an order declaring the
Constitution Twelfth Amendment Act to be unconstitutional
and invalid on the grounds that it violated section 155(3)(b)
of the Constitution. They argued that the new boundaries
of the Matatiele Municipality had been determined by
Parliament and not by an independent authority, namely
the Municipal Demarcation Board.
The Constitutional Court rejected this argument and
refused to grant the order. In arriving at this decision,
however, it set out some of the reasons why section 155(3)
(b) of the Constitution provides that the Municipal
Demarcation Board must be an independent body. In this
respect, the Constitutional Court pointed out that the
‘purpose of section 155(3)(b) is to guard against political
interference in the process of creating new
municipalities’,160 This is because, the Constitutional
Court pointed out further, if municipalities were established
along political lines or if there was political interference in
the establishment of new municipalities, our system of
multiparty democratic government would be
undermined.161 A deliberate decision, the Constitutional
Court went on to conclude, was therefore made to confer
the power to establish municipal areas on an independent
authority.162

The different types of municipalities that may be established within each

category of municipality are also set out in the Municipal Structures Act.
The Act begins in this respect by distinguishing between three ‘executive
systems’ of municipal government and two ‘participatory systems’.163 The
three executive systems are the collective executive system, the mayoral
executive system and the plenary executive system:
• A collective executive system is one in which the executive authority of
the municipality is exercised by an executive committee. In this system,
 the leadership of the municipality is therefore collectively vested in the
executive committee.
• A mayoral executive system is one in which the executive authority of
the municipality is exercised by an executive mayor assisted by a
mayoral committee. In this system, the leadership of the municipality is
vested in an executive mayor.
• A plenary executive committee is one in which executive authority is
exercised by the municipal council itself. In this system, the leadership
of the municipality is vested in the municipal council.
The two participatory systems are the subcouncil participatory system and
the ward participatory system:
• A subcouncil participatory system is one which allows for delegated
powers to be exercised by subcouncils established for parts of the
municipality.
• A ward participatory system is one which allows for matters of local
concern to wards to be dealt with by committees established for wards.
After distinguishing between these different systems of municipal
government, the Municipal Structures Act goes on to provide that:
• a metropolitan council must have either a collective or mayoral executive
system and may combine its executive system with a subcouncil
participatory system or a ward participatory system or both 164
• a local council may have a collective, mayoral or plenary executive
system and may combine its executive system with a ward participatory
system but not with a subcouncil participatory system 165
• a district council may have a collective, mayoral or plenary executive
system but may not combine its executive system with a subcouncil or
ward participatory system.166
The articulation of the type of municipality is important to determine three
issues:
• first, the institutional relationship between the municipality’s executive
and legislative functions
• second, whether a metropolitan or local municipality is permitted to
establish ward committees
• third, whether a metropolitan municipality is permitted to establish
subcouncils that exercise delegated powers for parts of the municipality.
Finally, it is important to note that section 155 of the Constitution also
provides that national legislation must make provision for an appropriate
division of powers and functions between local and district municipalities.
A division of powers and functions between a local and a district
municipality, however, does not have to be symmetrical, but must
constantly ensure that the need to provide municipal services in an equitable
and sustainable manner is being upheld.167 The national legislation
referred to in this section is the Municipal Structures Act.

8.3.4 Municipal powers

As we have already seen, municipalities are no longer simply creatures of
statute. Instead, they derive at least some of their executive and legislative
powers directly from the Constitution itself.168 The executive and
legislative powers of a municipality are set out in section 156 of the
Constitution. This section provides that a municipality has executive
authority in respect of and has the right to administer:
• the local government matters listed in Part B of Schedule 4 and Part B of
Schedule 5 169
• any other matter assigned to it by national or provincial legislation.170
In addition, section 156 of the Constitution also provides that a municipality
may make and administer by-laws for the effective administration of the
matters which it has the right to administer.171 A careful examination of
this section shows that it distinguishes between two types of powers:
• those powers that are derived directly from the Constitution and that may
be referred to as original powers
• those powers that are assigned to municipalities in terms of national or
provincial legislation and that may be referred to as assigned powers.
Apart from those powers that are derived directly from the Constitution or
that are assigned to it in terms of national or provincial legislation,
section 156(5) of the Constitution also provides that a municipality has the
right to exercise any power concerning a matter reasonably necessary for, or
incidental to, the effective performance of its functions.172

8.3.4.1 Original municipal powers

Section 156(1)(a) of the Constitution provides that a municipality has
executive and legislative authority in respect of the local government
matters listed in Part B of Schedule 4 and in Part B of Schedule 5. In
addition, section 156(5) of the Constitution also provides that a
municipality has the right to exercise any power concerning a matter
reasonably necessary for or incidental to the effective performance of its
Schedule 4 Part B and Schedule 5 Part B functions. Given that these powers
can only be altered or withdrawn if the Constitution itself is amended, they
form the most significant source of municipal powers and are a fundamental
feature of local government’s institutional integrity.173

PAUSE FOR REFLECTION

Using the bottom-up method to determine the

scope and ambit of the matters set out in
Schedule 4 and Schedule 5
In both the Liquor Bill case and in City of Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
and Others,174 the Constitutional Court held that the
scope and ambit of the matters set out in Schedule 4 and
Schedule 5 of the Constitution must be interpreted in light
of the model of government adopted by the Constitution
and the manner in which the Constitution allocates power
to the different spheres of government.
Besides these principles, the Constitutional Court also
held in Gauteng Development Tribunal that where two or
more matters appear to overlap with each other, they
should be interpreted in a bottom-up manner.175 A bottom-
up method of interpretation is one in which the more
specific matter is defined first and all residual areas are left
for the much broader matter.176
In the Gauteng Development Tribunal case, for example,
one of the key questions the Constitutional Court had to
answer was whether the power to approve applications for
the rezoning of land and the establishment of townships fell
into the broad matter of urban and rural development,
which is listed in Schedule 4A, or into the specific matter of
municipal planning, which is listed in Schedule 4B. In
accordance with the bottom-up method of interpretation,
the Constitutional Court began its analysis, not with an
examination of the scope and ambit of the broad matter of
urban and rural development, but rather with an
examination of the scope and ambit of the specific matter
of municipal planning.
In so far as the scope and ambit of municipal planning
was concerned, the Constitutional Court began by noting
that although the term is not defined in the Constitution, it
has a particular and well known meaning, which includes
the zoning of land and the establishment of townships.177
In addition, the Constitutional Court noted further, there is
nothing in the Constitution which indicates that the term
‘municipal planning’ should be given a meaning which is
different from its common meaning.178 The power to
approve applications for the rezoning of land and the
establishment of townships did, therefore, fall into the area
of municipal planning listed in Schedule 4B.179
After coming to this conclusion, the Constitutional Court
turned to consider whether the same powers also fell into
the broad matter of urban and rural development. The
Court held that they did not. In arriving at this conclusion,
the Constitutional Court began by noting that the term
‘urban and rural development’ could not be interpreted in a
way that included the power to approve applications for the
 rezoning of land and the establishment of townships. This
is because, the Constitutional Court noted further, such an
interpretation would infringe the principles of co-operative
government which provide that each sphere of government
must respect the functions of the other spheres and must
not assume any functions or powers not conferred on them
by the Constitution or encroach on the functional integrity
of the other spheres.180 An important consequence of this
approach, the Court went on to note, was that the term
‘urban and rural development’ should be interpreted
narrowly so that each sphere of government could exercise
its powers without interference by another sphere of
government.181
Having found that the term ‘urban and rural
development’ was not broad enough to include the powers
that form a part of municipal planning, the Constitutional
Court then concluded that it was not necessary to go any
further and define exactly what the scope of the functional
area of urban and rural development was.182

The Constitution confers the authority on municipalities to pass laws in

respect of the matters listed in Part B of Schedule 4 and Part B of
Schedule 5. However, it is important to note that the authority to pass laws
on the matters listed in Schedule 4B and Schedule 5B has also been
conferred on the national 183 and provincial governments.184 The
authority conferred on the national and provincial governments to pass laws
on the matters listed in Schedule 4B, however, is limited by section 155(6)
(a) and 155(7) of the Constitution.185 The authority conferred on the
provincial governments to pass laws on the matters listed in Schedule 5B is
limited by section 155(6)(a) and 155(7) of the Constitution.186
Section 155(6)(a) of the Constitution provides in this respect that ‘[e]ach
provincial government … by legislative and other measures, must provide
for the monitoring and support of local government in the province’.
Section 155(7) of the Constitution provides that:
[t]he national government, subject to section 44, and the
provincial governments have the legislative and executive
authority to see to the effective performance by
municipalities of their functions in respect of matters
listed in Schedule 4 and 5, by regulating the exercise by
municipalities of their executive authority referred to in
section 156(1).
In the Gauteng Development Tribunal case, the Constitutional Court held
that an important consequence of section 155(7) of the Constitution is that
neither the national nor the provincial spheres of government can, by
legislation, give themselves the power to exercise executive municipal
powers or the right to administer municipal affairs.187 This is because, the
Constitutional Court held further, the mandate of these two spheres is
ordinarily limited to regulating the exercise of executive municipal powers
and the administration of municipal affairs by municipalities.188 In other
words, while the national and provincial spheres of government are entitled
to pass laws regulating the local government matters set out in Schedule 4B
and Schedule 5B, they are not entitled to pass laws giving themselves the
power to administer or implement those laws. The municipalities
themselves must exercise the power to administer or implement those laws.

8.3.4.2 Assigned municipal powers

Sections 44(1)(a)(iii) and 104(1)(c) of the Constitution provide that both the
national and provincial governments may increase the legislative powers of
specific municipalities or municipalities in general by assigning any of their
legislative powers to a specific municipality or to municipalities in general.
Apart from sections 44(1)(a)(iii) and 104(1)(c), sections 99 and 126 of the
Constitution provide that a national or provincial Minister may increase the
executive powers of a specific municipality by assigning their executive
powers to the municipal council of that municipality. The assignment must,
however, be consistent with the Act in terms of which the relevant power is
exercised or performed.189 Finally, it is also important to note that
section 156(4) of the Constitution provides that the national and provincial
governments must assign the administration of a matter listed in Part A of
Schedule 4 or Part A of Schedule 5 to a municipal council if certain
conditions are met. These conditions are as follows:
• First, the matter necessarily relates to local government.
• Second, the matter would most effectively be administered locally.
• Third, the municipality has the capacity to administer the matter.
• Fourth, the municipal council agrees to the assignment.
A key difference between section 156(4) of the Constitution and sections 99
and 126 is that while section 156(4) is mandatory, sections 99 and 126 are
discretionary. Section 156(4) thus reinforces the principle of subsidiarity,
which requires that the exercise of public power takes place at a level as
close as possible to the citizenry.

PAUSE FOR REFLECTION

The assignment of legislative and executive

powers
It is not entirely clear how section 156(4) of the Constitution
relates to the assignment of legislative powers in terms of
sections 44(1)(a)(iii) and 104(1)(c) and the assignment of
executive powers in terms of sections 99 and 126. On the
one hand, it may be argued that section 156(4) of the
Constitution is an additional basis for the assignment of
both legislative and executive powers to a municipality.
This is because it refers to the national and provincial
‘governments’ and not simply the national and provincial
legislatures. On the other hand, it may be argued that
section 156(4) of the Constitution simply sets out the
circumstances under which the assignment of executive
powers in terms of sections 99 and 126 becomes
compulsory. This is because it refers to the assignment of
 the ‘administration’ of the matters listed in Schedules 4A
and 5A in terms of an ‘agreement’ to a ‘specific
municipality’.
Steytler and De Visser argue that the terms
‘administration’, ‘agreement’ and ‘specific municipality’ in
section 156(4) of the Constitution all point towards
assignments that have their basis in sections 99 and 126 of
the Constitution. This means, they argue further, that
section 156(4) is not an additional basis for assignment,
but rather a principle that sets out the circumstances under
which an assignment of executive powers in terms of
section 99 or 126 becomes compulsory.190

An assigning agent may set the parameters for the exercise of the assigned
authority in the legislative act of assignment. The assignment is intended to
be a complete transfer of the function and it entails the final decision-
making power in individual matters. Accordingly, the assignment must
conform to the requirements of section 151(4) of the Constitution. The
assignment of powers and functions to municipalities by legislation or by an
executive act or by agreement is regulated by the Local Government:
Municipal Systems Act.

8.3.4.3 Incidental municipal powers

Section 156(5) of the Constitution provides that a municipality has the right
to exercise any power concerning a matter that is reasonably necessary for
or incidental to the effective performance of its functions. This power is
sometimes referred to as the incidental power. The incidental power refers
to those powers that strictly speaking fall outside the matters over which a
municipality has legislative and executive authority, but are so closely
connected to the effective performance of its functions that they are
considered to be a part of the matters over which a municipality has
authority. While they are not intended to create new functional areas of
legislative and executive authority, the incidental powers do broaden a
municipality’s existing functional areas of legislative and executive
authority.

PAUSE FOR REFLECTION

Determining the subject matter of a law

The matters over which a municipality has legislative and
executive authority may be divided into three categories:
• first, those set out in Schedules 4B and 5B of the
Constitution
• second, those that have been assigned to a municipality
by the national or provincial government
• third, those that are reasonably necessary for or
incidental to the effective performance of its functions.
As the judgment in Le Sueur and Another v Ethekwini
Municipality and Others191 illustrates, a municipality may
base its power to pass legislation on a particular subject
matter on any one or all three of these categories. The
facts of this case were as follows. In 2010, the eThekwini
Municipal Council adopted a resolution amending its town
planning scheme to introduce the Durban Open Space
System (D-MOSS). This system is aimed at protecting
areas that have a high biodiversity value in Durban by
creating a system of open spaces that will link them
together. To achieve this goal, the system provides that
land which falls within a D-MOSS area may not be
developed without first obtaining an environmental
authorisation. Even then, it may only be developed subject
to strict controls aimed at protecting the ecological goods
and services the land provides.
After the Municipal Council had adopted this resolution,
the applicant, who owned land located in the eThekwini
Municipality, applied for an order declaring the resolution to
be unconstitutional and invalid. He based his application,
among others, on the grounds that the subject matter of
the resolution was the environment, that this matter is
listed in Schedule 4A as a functional area of national and
provincial legislative competence and, consequently, that
the resolution fell outside the legislative authority of the
Municipal Council.
The High Court rejected this argument. In arriving at this
decision, the Court noted that the functional area of
municipal planning which is set out in Schedule 4B must be
interpreted in the light of section 24 of the Constitution.192
This section provides that ‘[e]veryone has a right to an
environment that is not harmful to their health or well-
being’. In addition, section 152(1)(d) of the Constitution
provides that one of the objectives of local government is
to ‘promote a safe and healthy environment’. These
sections clearly indicate that the functional area of
municipal planning includes responsibility over
environmental affairs.193
The Court noted further that it is clear that legislative and
executive authority over environmental matters as a part of
municipal planning has been assigned to municipalities by
national and provincial legislation.194 Section 23(1)(c) of
the Municipal Systems Act, which deals with integrated
development planning at a municipal level, for example,
recognises that there is an obligation on municipalities
together with other organs of state to contribute to the
progressive realisation of the fundamental rights contained
in section 24 of the Constitution.195
Apart from the grounds set out above, the Court also
appears to have accepted that the environment may be
classified as a matter that is reasonably necessary for or
incidental to the effective performance of a municipality’s
municipal planning function. This is because municipalities
have traditionally been involved in regulating environmental
 matters at the local level and it is inconceivable that the
drafters of the Constitution intended to exclude
municipalities from legislating in this area.196
While the decision appears to be correct, it highlights the
fact that it may not always be easy to determine whether
the subject matter of a law falls into one of the functional
areas set out in Schedules 4B and 5B, or into the incidental
powers set out in section 156(5) of the Constitution.

8.3.5 Conflicting national, provincial and municipal

laws
Given that Parliament, the provincial legislatures and the municipal
councils all have the power to pass laws in respect of the matters listed in
Schedules 4B and 5B, it is inevitable that these laws will on occasion
conflict with one another. Conflicts between national and provincial laws
and municipal laws are resolved in terms of section 156(3) of the
Constitution. This section provides simply that, subject to section 151(4), a
by-law that conflicts with national or provincial legislation is invalid. An
important consequence of this provision is that a municipality must exercise
its legislative and executive authority within the parameters set by national
or provincial legislation. In the absence of any national or provincial law
regulating a local government matter, however, a municipality is free to
determine the content of its legislative and executive decisions.

PAUSE FOR REFLECTION

National and/or provincial legislation does not

always prevail over municipal law
There is a common misconception that national and/or
provincial legislation always prevails over municipal law. An
example illustrating that this is not the case is section 29(1)
of the National Building Regulations and Building
 Standards Act197 which provides that ‘the provisions of
any law applicable to any local authority are hereby
repealed in so far as they confer a power to make building
regulations or by-laws regarding any matter provided for in
this Act’. However, the Constitution grants original
legislative and executive authority to local government over
building regulations in Schedule 4B. Local government
power therefore prevails in this situation.

8.3.6 Supervision of local government

Although the Constitution confers legislative and executive powers on local
government, it also recognises that local government is the weakest of the
three spheres of government and often lacks the capacity to exercise these
powers.
The Constitution, therefore, also provides that the manner in which local
government exercises its legislative and executive powers must be
supervised by the national and provincial spheres of governments. These
supervisory powers may be divided into four different categories:
• the power to monitor local government
• the power to support local government
• the power to regulate local government
• the power to intervene in local government.198
The power to monitor local government is set out in section 155(6) of the
Constitution. This section provides that each provincial government must,
by legislative or other measures, provide for the monitoring and support of
local government in the province. Provincial governments must also
promote the development of local government capacity to enable
municipalities to perform their functions and to manage their own affairs. In
the First Certification judgment, the Constitutional Court held that this
power grants the provincial governments the authority to ‘observe’ or ‘keep
under review’ the manner in which a municipality manages its affairs. It
does not, however, confer on provincial government the authority to control
the affairs of a municipality. It is accordingly the least intrusive of all the
supervisory powers.199
The power to support local government is set out in section 154(1) of the
Constitution. This section provides that the national and provincial
governments, by legislative and other measures, must support and
strengthen the capacity of municipalities to manage their own affairs, to
exercise their powers and to perform their functions.200 In the First
Certification judgment, the Constitutional Court held that this power grants
both the national and provincial governments the authority to strengthen a
municipality’s ability to manage its affairs. It may also be used by national
and provincial governments to prevent a decline or degeneration in a
municipality’s existing structures, powers and functions.201 It is, therefore,
more intrusive than the power to monitor local government, but not as
intrusive as the power to regulate or intervene.202
The power to regulate local government is set out in section 155(7) of
the Constitution. This section provides that both the national and provincial
governments have the legislative and executive authority to see to the
effective performance by municipalities of their functions in respect of the
matters listed in Schedules 4 and 5 by regulating the exercise by
municipalities of their executive authority. In the First Certification
judgment, the Constitutional Court held that this power grants the national
and provincial governments the authority to ‘control’ the manner in which a
municipality manages its affairs.203 It does not, however, confer on the
national and provincial governments the authority to exercise municipal
powers or perform municipal functions.204 It simply authorises the national
and provincial governments to establish a framework within which a
municipality must perform.205 It is a ‘hands-off’ and not a ‘hands-on’
power.
Section 139(1) of the Constitution provides that when a municipality
cannot or does not fulfil an executive obligation in terms of the Constitution
or legislation, the relevant provincial executive may intervene by taking any
appropriate steps to ensure the fulfilment of that obligation. The appropriate
steps which the provincial executive may take include measures such as
issuing a directive, assuming responsibility and dissolving a municipal
council.206 The power to intervene in terms of section 139(1) of the
Constitution is commonly referred to as a regular intervention. Apart from
regular interventions, section 139 of the Constitution also provides for
budgetary interventions and financial crises interventions.
Section 139(4) of the Constitution governs budgetary interventions. This
section provides that if a municipality cannot or does not fulfil an obligation
in terms of the Constitution or legislation to approve a budget or any
revenue-raising measures necessary to give effect to the budget, the national
or relevant provincial executive must intervene by taking any appropriate
steps to ensure that the budget or those revenue-raising measures are
approved. The appropriate steps which the national or provincial executive
may take include measures such as the mandatory dissolution of the
municipal council and the adoption of a temporary budget or revenue-
raising measures.207
Section 139(5) of the Constitution governs financial crises interventions.
This section provides that if a municipality, as a result of a crisis in its
financial affairs, is in serious or persistent material breach of its obligations
to provide basic services or to meet its financial commitments, or admits
that it is unable to meet its obligations or financial commitments, the
national or relevant provincial executive must impose a financial recovery
plan, dissolve the municipal council, or assume responsibility for the
implementation of a recovery plan.
In the First Certification judgment, the Constitutional Court explained
that the power to intervene gives the provincial government the authority to
intrude on the functional terrain of local government.208 In other words, it
does confer on provincial government the authority to exercise municipal
powers and perform municipal functions. It is a ‘hands-on’ power. It is,
accordingly, the most intrusive power.209 Given its intrusive nature, the
circumstances under which a provincial government can exercise this power
are not only restricted, but are also subject to various procedural
requirements.
8.4 Financial affairs

8.4.1 Introduction
Apart from dividing legislative and executive power between the national,
provincial and local spheres of government, the Constitution also divides
fiscal powers – the power to collect and spend public funds – between the
three spheres of government. Chapter 13 of the Constitution sets out the
constitutional provisions regulating fiscal powers. Chapter 13 is sometimes
referred to as the financial constitution. Apart from regulating the power to
collect and spend public funds, Chapter 13 of the Constitution also
establishes two important regulatory bodies, namely the central bank and
the Fiscal and Financial Commission (FFC).

CRITICAL THINKING

The power of the purse

Murray and Simeon argue that:
[I]n multilevel systems of government, fiscal federalism, or the
division of revenues and expenditures among central and
provincial governments, may say as much, if not more, about how
power and influence are distributed than the constitutional text.
Constitutional competencies are meaningless without an
accompanying fiscal competence (not to mention other dimensions
of competence such as administrative capacity). Financial sticks
and carrots in a centralized financial system give the centre power
to influence provincial actions and priorities well beyond the formal
allocation of authority.210

After reading Chapter 13 of the Constitution and after

assessing the financial powers of each sphere of
government, it is easier to determine which sphere of
government has been provided with more decisive powers.
From such a study, it becomes apparent that the provincial
sphere of government is less powerful than the other
spheres.
8.4.2 The division of fiscal powers
The division of fiscal powers between different spheres of government
gives rise to a number of difficult questions. Among these are the
following:
• First, whether the power to raise revenue should be distributed between
the different spheres of government or centralised in the national sphere.
In a competitive or divided system of federalism, for example in Canada,
the power to impose taxes is usually distributed between the different
spheres of government. In a co-operative or integrated system of
federalism, such as South Africa, the power to impose taxes is usually
centralised in the national sphere of government.211
• Second, if the power to impose taxes is centralised in the national sphere
of government, the next question that arises is how the revenue that has
been raised by the national sphere of government should be distributed,
not only between the different spheres of government, but also within
each sphere. Insofar as this question is concerned, there are a number of
different approaches that may be adopted. The transfer of funds could,
for example, take the form of conditional grants, on the one hand, or
unconditional grants, on the other.212
• Finally, there is also the question of how the decision to divide national
revenue between the different spheres of government and within each
sphere of government should be made and by whom. Should it be made
by the national sphere of government alone or should the other spheres
have a say? What about third parties? Should they be given a role to
play? 213

8.4.3 The collection of revenue

As Kriel and Monadjem point out, the power to collect revenue is vested
primarily in the national sphere of government.214 This is because
Chapter 13 of the Constitution restricts the power of the provincial and
local spheres of government to impose taxes. In so far as the provincial
sphere of government is concerned, section 228(1) of the Constitution
provides that a provincial legislature may impose:
• taxes, levies and duties other than income tax, value-added tax, general
sales tax, rates on property or customs duties
• flat-rate surcharges on any tax, levy or duty, other than corporate income
tax, value-added tax, rates on property or customs duty.
An important consequence of these provisions is that the main sources of
revenue such as income tax, value-added tax, general sales tax, and rates
and customs duties have been expressly removed from the jurisdiction of
the provinces.

PAUSE FOR REFLECTION

The reason for the decision to restrict the power

of the provincial legislatures to impose taxes
Although the power to impose taxes promotes the
principles of accountability and transparency in
government, the drafters of the Constitution decided to
restrict the power of the provincial legislatures to impose
taxes. This is partly because the drafters of the
Constitution believed that the economic disparities that
already exist between the provinces would have been
exacerbated if significant taxing powers were given in the
provinces.

Apart from the provisions set out above, section 228(2) of the Constitution
also provides that a provincial legislature’s power to impose taxes, levies,
duties and surcharges may not be exercised in a way that materially and
unreasonably prejudices national economic policies, economic activities
across provincial boundaries, or the mobility of goods, services, capital or
labour. In addition, a provincial legislature’s power to impose taxes must be
regulated by an Act of Parliament which may be passed only after any
recommendations made by the FFC have been considered.215 The Act of
Parliament referred to in this section is the Provincial Tax Regulation
Process Act.216
The Provincial Tax Regulation Process Act restricts a provincial
legislature’s power to introduce a new provincial tax. This is because it
essentially provides that if a province wishes to introduce a new provincial
tax, it must first submit a proposal to the Minister of Finance who, after
consulting the Budget Council, must introduce a Bill into the NA to
regulate the new provincial tax. Given the restrictions imposed by this Act,
it is not surprising that no new provincial taxes have ever been introduced.
In so far as municipalities are concerned, section 229(1) of the
Constitution provides that a municipality may impose:
• rates on property and surcharges on fees for services provided by or on
behalf of the municipality
• if authorised by national legislation, other taxes, levies and duties
appropriate to local government or to the category of local government
into which the municipality falls.
Like the provincial legislatures, however, municipalities may not impose
income tax, value-added tax, general sales tax or customs duty. Apart from
the provisions set out above, section 229(2) of the Constitution also
provides that a municipality’s power to impose rates on property, surcharges
on fees or other taxes, levies or duties may not be exercised in a way that
materially and unreasonably prejudices national economic policies,
economic activities across provincial boundaries, or the mobility of goods,
services, capital or labour.
In addition, a municipality’s power to impose rates on property,
surcharges on fees or other taxes, levies or duties may be regulated by
national legislation which may be passed only after organised local
government and the FFC have been consulted and any recommendations
made by the FFC have been considered.217 The national legislation
referred to in this section is the Local Government: Municipal Property
Rates Act 218 and the Municipal Fiscal Powers and Functions Act.219 The
Municipal Property Rates Act regulates the municipalities’ power to levy
property rates and the Municipal Fiscal Powers and Functions Act regulates
their power to levy surcharges on fees.
PAUSE FOR REFLECTION

Determining when property is state property

Section 3(3)(a) of the Rating of State Property Act 220
(Rating Act) provides that a municipality may not impose
rates on state property that is held by the state in trust for
the inhabitants of an area that falls into the jurisdiction of a
municipality. In Ingonyama Trust v eThekwini
Municipality,221 the Supreme Court of Appeal (SCA) had
to decide whether land owned by the Ingonyama Trust fell
into section 3 of the Rating Act and was therefore exempt
from paying property rates to the eThekwini Municipality.
The Ingonyama Trust was established in terms of the
KwaZulu Ingonyama Trust Act.222 It owns all the land that
was previously owned by the government of KwaZulu and
is administered by a board made up of the Ingonyama and
eight other members appointed by the Minister of Land
Affairs.
The key issue that the SCA had to decide was whether
the land owned by the Ingonyama Trust could be classified
as state property. The Court held that it could and,
consequently, that the Trust was exempt from paying rates
in terms of section 3 of the Rating Act.223
In arriving at this decision, the SCA noted that the land
owned by the Ingonyama Trust could be defined as state
property because the Trust itself could be said to be a part
of the state.224 The SCA gave the following reasons why
the Trust could be said to be a part of the state:
• First, eight of the nine trustees were appointed by the
Minister of Land Affairs who also had the power to make
regulations governing the affairs of the Trust.225
 • Second, the cost of administering the Trust had to be
paid by the Department of Land Affairs.226
• Third, the financial statements of the Trust had to be
audited by the Auditor-General.
• Fourth, an annual report on the activities of the Trust
had to be submitted to the Minister of Land Affairs by the
accounting authority of the Trust.227
• Last, the land owned by the Trust was defined as state
land by Parliament in a number of other statutes, for
example the National Veld and Forest Fire Act,228 the
National Forests Act229 and the South African Schools
Act.230

8.4.4 The distribution of revenue

Although the Constitution restricts the power of the provincial and local
spheres of government to impose taxes and thus to raise revenue, it
compensates them for this loss by granting them a right to an equitable
share of revenue collected nationally. Section 214(1) of the Constitution
provides in this respect that an Act of Parliament must provide for:
• the equitable division of revenue raised nationally between the national,
provincial and local spheres of government
• the determination of each province’s equitable share of the provincial
share of that revenue
• any other allocations to provinces, local government or municipalities
from the national government’s share of that revenue, and any conditions
on which those allocations may be made.
The Act referred to in section 214(1) of the Constitution is the annual
Division of Revenue Act (DORA). Section 214(2) of the Constitution
provides that the DORA may be passed only after the provincial
governments, organised local government and the FFC have been consulted
and any recommendations made by the FFC have been considered. In
addition, section 214(2) of the Constitution also provides that the DORA is
required to take into account:
(a) the national interest;
(b) any provision that must be made in respect of the
national debt and other national obligations;
(c) the needs and interests of the national government,
determined by objective criteria;
(d) the need to ensure that the provinces and
municipalities are able to provide basic services and
perform the functions allocated to them;
(e) the fiscal capacity and efficiency of the provinces and
the municipalities;
(f) developmental and other needs of provinces, local
government and municipalities;
(g) economic disparities within and among the
provinces;
(h) obligations of the provinces in terms of national and
provincial legislation;
(i) the desirability of stable and predictable allocations
of revenue shares; and
(j) the need for flexibility in responding to emergencies
or other temporary needs, and other factors based
on similar objective criteria.
While regard must be had for the need of the provinces to be able to provide
basic services and carry out their developmental objectives, the criteria set
out in section 214(2) place a heavy emphasis on the importance of national
objectives and priorities. The listing appears to suggest that the other
criteria will be evaluated through the prism of national objectives. The
process preceding the adoption of the DORA is set out in the
Intergovernmental Fiscal Relations Act.231
At least 10 months before the start of each financial year, the FFC must
submit recommendations for an equitable division of revenue raised
nationally between the three spheres of government as well as each
province’s share of the provincial share of national revenue to the Minister
of Finance, Parliament and the provincial legislatures.232 After receiving
the FFC’s recommendations, the Minister of Finance must consult with the
FFC itself, the provinces, either in the Budget Council or in some other
way, and organised local government, either in the Budget Forum or in
some other way.233 The Budget Council and the Budget Forum are
statutory bodies established by the Intergovernmental Fiscal Relations Act
to facilitate intergovernmental consultation with respect to fiscal
matters.234 Once these consultations have taken place, the Minister of
Finance must introduce the annual Division of Revenue Bill in the NA at
the same time that the annual budget is introduced. The equitable share
allocated to each sphere of government as well as each province’s share of
the provincial share of national revenue must be set out in this Bill.235
The DORA begins by dividing the revenue raised nationally between the
three spheres of government. It then goes on to divide the provincial share
of revenue raised nationally between the provinces and finally it divides the
municipal share of revenue raised nationally between the municipalities.
The amounts allocated to each province and each municipality are based on
different formulae. These formulae are made up of a number of different
components.236
Finally, it is important to note that although the equitable share of
national revenue is supposed to be an unconditional grant, there are some
restraints on the manner in which the provinces may spend this money.
Section 227 of the Constitution, for example, states that ‘each province is
entitled to an equitable share … to enable it to provide basic services and
perform the functions allocated to it’. Provinces, therefore, must use the
equitable share to provide basic services and perform the functions
allocated to them.

8.4.5 The budgetary process

Section 215(1) of the Constitution provides that the national, provincial and
municipal budgetary processes must promote transparency, accountability
and the effective financial management of the economy, debt and the public
sector. In addition, section 215(2) of the Constitution provides that national
legislation must prescribe the form of national, provincial and municipal
budgets; when national and provincial budgets must be tabled; and that
budgets in each sphere of government must show the sources of revenue
and the way in which proposed expenditure will comply with national
legislation. Budgets in each sphere of government must also contain:
• estimates of revenue and expenditure, differentiating between capital and
current expenditure
• proposals for financing any anticipated deficit for the period to which
they apply
• an indication of the intentions regarding borrowing and other forms of
public liability that will increase public debt during the ensuing year.237
As the Constitutional Court pointed out in the Premier: Limpopo Province
case,238 the Public Finance Management Act (PFMA) 239 deals with
public finance. To help achieve the objects of section 215 of the
Constitution, section 27(1) of the PFMA provides that the Minister of
Finance must table the annual budget for the financial year before the start
of that financial year. In addition, the MEC for Finance in each province
must table an annual provincial budget within two weeks of the Minister’s
budget speech unless an extension has been granted by the Minister of
Finance.240 Section 27(3) provides that, among other factors, the annual
budget must contain:
• estimates of all revenue expected to be raised during the financial year
• estimates for the current expenditure for that financial year
• estimates of interest and debt servicing charges
• any repayments on loans
• estimates of capital expenditure for that financial year and projected
financial implications of that expenditure for future financial years
• estimates of all direct charges against the relevant revenue fund and
standing appropriations for that financial year
• proposals for financing any anticipated deficit in that financial year.
Apart from helping to achieve the objects of section 215 of the Constitution,
the PFMA is also aimed at fulfilling the obligations imposed on Parliament
by section 216 of the Constitution. Section 216 provides that national
legislation must establish a national treasury and prescribes measures to
ensure both transparency and expenditure control in each sphere of
government by introducing generally recognised accounting practices,
uniform expenditure classifications and uniform treasury norms and
standards.
Although section 216 of the Constitution imposes an obligation on
Parliament to establish a national treasury and not provincial treasuries, the
PFMA makes provision not only for a national treasury, but also for a
provincial treasury in each province. The Minister of Finance heads the
National Treasury which comprises those departments that are responsible
for financial and fiscal matters.241 The main functions of the National
Treasury are to:
• promote the national government’s fiscal policy framework
• co-ordinate macroeconomic policies
• co-ordinate intergovernmental financial and fiscal relations
• manage the budget preparation process
• exercise control over the implementation of the annual budget
• facilitate the implementation of the annual DORA
• monitor the implementation of the provincial budget
• promote and enforce transparency and effective management in respect
of revenue, expenditure, assets and liabilities of departments, public
entities and constitutional institutions.242
In terms of section 11 of the PFMA, the National Treasury is also in charge
of the National Revenue Fund. The National Revenue Fund is established in
terms of section 213 of the Constitution. This section provides that all
money received by the national government, except money excluded by an
Act of Parliament, must be paid into the fund. In addition, it also provides
that money may be withdrawn from the National Revenue Fund only in
terms of an appropriation by an Act of Parliament or a direct charge against
the National Revenue Fund when it is provided for in the Constitution or an
Act of Parliament. A province’s equitable share of national revenue is a
direct charge against the National Revenue Fund.
The provincial treasury for each province is headed by the MEC for
Finance in the province and the provincial department responsible for
financial matters in each province.243 The main functions of each
provincial treasury are to:
• prepare a provincial budget
• exercise control over the implementation of the provincial budget
• promote the transparent and effective management in respect of revenue,
expenditure, assets and liabilities of the provincial departments and
provincial public entities
• ensure that its fiscal policies do not materially and unreasonably
prejudice national economic policies.244
In terms of section 21 of the PFMA, each provincial treasury is in charge of
the Provincial Revenue Fund for its province. Provincial Revenue Funds are
established in terms of section 226 of the Constitution. This section
provides that all money received by a provincial government, except money
excluded by an Act of Parliament, must be paid into the Provincial Revenue
Fund. In addition, it also provides that money may be withdrawn from a
Provincial Revenue Fund only in terms of an appropriation by a provincial
Act or a direct charge against the Provincial Revenue Fund when it is
provided for in the Constitution or a provincial Act. Revenue allocated to
local government in terms of section 214 of the Constitution is a direct
charge against a Provincial Revenue Fund.

8.4.6 The central bank

Section 223 of the Constitution provides that the Reserve Bank is the
central bank of the Republic and that it must be regulated in terms of an Act
of Parliament. The Act referred to in this section is the South African
Reserve Bank Act.245 In terms of section 224(2) of the Constitution, the
‘primary objective of the South African Reserve Bank is to protect the
value of the currency in the interest of balanced and sustainable economic
growth’. In addition, section 224(2) also provides that the bank is obliged to
function independently and without fear, favour or prejudice, but must
consult regularly with the Minister of Finance. The Reserve Bank plays a
key role in the management of the money and banking system. The Reserve
Bank describes this role as follows:
• The formulation and implementation of monetary policy: Monetary
policy refers to the measures taken to influence the quantity of money
and the rate of interest in the country. This assists is ensuring stability of
 prices and seeks to promote employment and economic growth. The
Reserve Bank sets the interest rates at which other banks can borrow
money and this ultimately determines the interest that consumers pay in
respect of their debts such as mortgage bonds.
• The provision of liquidity to banks: When banks face a liquidity
problem as a result of a temporary shortage of cash, the Reserve Bank
provides liquidity to these banks on a conditional and temporary basis.
The main purpose of this assistance is to prevent banks going into
bankruptcy and people losing their savings and deposits that they
invested in the banks.
• Bank notes and coins: The Reserve Bank has the exclusive authority to
issue and destroy bank notes and coins in the country.
• Banker of other banks: The Reserve Bank is the custodian of the cash
reserves that banks are legally required to hold.246
The Reserve Bank thus plays a vital role in the formulation and
implementation of economic policies. Its decisions have a direct impact on
the lives of people. Importantly, the policy decisions of the Reserve Bank
and the government in power may not always coincide and it is for this
reason that the independence of the Bank is entrenched. The Reserve Bank
is meant to act is the best interests of the economy of the country and to be
shielded from having to act in accordance with the popular will.

8.4.7 Procurement

8.4.7.1 Introduction
Section 217 of the Constitution makes it imperative for an organ of state in
the national, provincial or local sphere to contract for goods and services in
a manner that is fair, equitable, transparent, competitive and cost-effective.
However, organs of state are not prevented from implementing a
procurement policy providing for categories of preferences in the allocation
of contracts and the protection or advancement of persons or categories of
persons previously disadvantaged by unfair discrimination.247 The section
goes on to require national legislation to be enacted to prescribe a
framework to implement the policy of preference to previously
disadvantaged persons. The Preferential Procurement Policy Framework
Act (PPPFA) 248 is the empowering legislation that seeks to achieve this
objective.
In Millennium Waste Management (Pty) Ltd. v Chairperson of the Tender
Board: Limpopo Province and Others,249 the SCA required tenders to be
evaluated in a manner that advances the five constitutional values identified
in section 217 of the Constitution. In this case, the appellant had submitted
its tender which met all the specifications of the advertisement. However,
the appellant had inadvertently omitted to sign the declaration of interest,
but had inserted the name of the relevant person and had filled in the
relevant information. A tender committee on behalf of the Limpopo
Department of Health and Social Development disqualified the applicant
and finally awarded the tender to a consortium called TTP. A particularly
concerning aspect was that TTP’s bid for the removal, treatment and
disposal of hospital waste was R3 600 000 per month which was
significantly more than appellant’s tender which would have cost the
Department R400 000 per month.
The Tender Board argued that the signing of the declaration of interest
was peremptory and as the appellant had not signed it, the Tender Board
was obliged to disqualify the appellant.
The SCA held that the decision to award the tender was administrative
action and had to comply with the provisions of the Promotion of
Administrative Justice Act (PAJA),250 with section 217 of the Constitution
and with the PPPFA.251 Interpreting the regulations in terms of which the
Tender Board was acting, the SCA held that the Tender Board had the
power to condone non-compliance with procedural defects in the
application.252 However, the SCA went on to hold that ‘our law permits
condonation of non-compliance with peremptory requirements in cases
where condonation is not incompatible with public interest and if such
condonation is granted by the body in whose benefit the provision was
enacted’.253 The SCA stated further that the condonation of the failure to
sign would have been in the public interest as it would have facilitated
competitiveness.254 A condonation in this instance would have served the
broader constitutional values of fairness, competiveness and cost-
effectiveness.255
Importantly, the SCA held that whether the appellant’s tender constituted
an acceptable tender in terms of the PPPFA must be construed in the
context of a system that is fair, equitable, transparent, competitive and cost-
effective.256 In other words, the constitutional values must be the prism
through which the enabling legislation must be interpreted. The SCA held
the term ‘tender’ must be given a relatively narrow meaning and cannot
mean that the tender must comply with conditions which are immaterial,
unreasonable or unconstitutional.257 The SCA concluded that by insisting
on disqualifying the appellant for an innocent omission, the Tender Board
had acted unreasonably.258 The SCA set aside the decision of the Tender
Board and ordered the Tender Board to reconsider and adjudicate on the
bids submitted by the appellant and TTP afresh. The Court thus assessed the
entire tender process against the five values identified in the Constitution
and not just the final evaluation process of the shortlisted candidates.

PAUSE FOR REFLECTION

When is condonation permissible?

Assume that the price differential was not as stark and
assume that tenderer B had submitted their tender a day
after the date stipulated in the advertisement. Tenderer B
tendered to remove hospital waste for R400 000 per month
and the successful tenderer (Tenderer A) quoted R1 million
per month. In all other respects, the tenders are similar.
Does the Millennium Waste Management case allow a
tender board to entertain the late submission of the tender
by tenderer B? Alternatively, could such an option not be
used to overlook all sorts of non-compliance and in the
final analysis be contrary to the values in the Constitution?
In Minister of Social Development and Others v Phoenix Cash & Carry
Pmb CC,259 the SCA once again reiterated that the five principles of
fairness, equitable treatment, transparency, competitiveness and cost-
effectiveness must inform all aspects of the tender process. In a frank
judgment, the SCA directly questioned the legitimacy of the process that
led to the appellants being denied the tender and in a damning indictment
indicated that from its experience drawn from matters before the Court, the
values of section 217 are more honoured in the breach than in the
observance.260
The facts of this case were as follows. Bids were invited to supply food
hampers to indigent families in KwaZulu-Natal and in the Eastern Cape.
The price of the bid submitted by Phoenix was approximately 40% less than
that submitted by the successful tenderer. In response to a request for
reasons, the department indicated that it had evaluated the bids and that
Phoenix was unsuccessful. Subsequently, the department attempted to
supplement their reasons by stating that Phoenix had not complied with
certain prerequisites.
The SCA found that the department in excluding the bid by Phoenix had
elevated form above substance.261 Had it properly appraised the
documents submitted, it would have concluded that the material issues
dealing with financial viability had been dealt with even though no audited
statements were submitted.262 Accordingly, the SCA held that the process
was fundamentally flawed and set aside the decision. In an effort to prevent
such a fundamentally flawed process from being repeated, the Court laid
down the following principles:
• It is against the principle of fairness for the tender process to be
evaluated on the basis of uncertain criteria which could have the effect of
meritorious applicants being excluded.
• A process that emphasises form over substance could have the effect of
facilitating corrupt practices by providing an excuse not to consider
meritorious tenders and by excluding them on technicalities. This is
often inimical to fairness, competitiveness and cost-effectiveness.
• The tender board can prescribe formalities, provided the requirements
are made clear and the consequences of non-compliance spelt out.263
The SCA cautioned against unreasonably elevating matters of subsidiary
importance to a level of primary importance and then deeming non-
compliance to be fatal to the bid.264
Section 217 of the Constitution must be read with section 5 of the PAJA
which requires a functionary to provide adequate reasons for administrative
decisions which materially and adversely affect rights if requested. Once
reasons are provided, the decision can be appraised against the
constitutional criteria in section 217. In the Phoenix Cash & Carry case, the
reasons supplied were woefully inadequate and the supplementary reasons
confirmed that, at best, an unreasonable and irrational decision had been
made. The tenor of the judgment appears to suggest that the irrationality
bordered on improper conduct.
What is apparent from these decisions is that while price may not be the
decisive factor, massive disparities in pricing will weigh with the court
when determining whether a public body has discharged its ultimate
mandate of acting in the public good. It would be advisable therefore that if
the successful tenderer’s contract price is much more expensive than the
unsuccessful tenderer, that the reasons provided deal with the disparity in
price and justify the decision to award the tender despite the price
differential.

PAUSE FOR REFLECTION

Dealing with disparities in price

When a tender is awarded to a body that did not submit the
lowest tender, the state is paying more for a service or
product. Assume that Cleaners Incorporated, a group of
female cleaners who have been cleaning the officers of the
KZN Provincial Administration for the last five years, form a
consortium and bid for a new provincial government
cleaning contract against their previous employers,
Sparkling Clean CC. Most members of Cleaners
Incorporated are African female and many of them are sole
breadwinners. Their bid is R10 000 more a month to clean
 the buildings than the corresponding offer by Sparkling
Clean, which is a national company. Should the
government procurement policy be used to bridge the
economic disparity in our society or should government
attempt to obtain the maximum value for its rands given the
demands on a limited budget?

8.4.7.2 The Preferential Procurement Policy Framework

Act 5 of 2000
While section 217(1) of the Constitution imposes an obligation to act in
terms of a system that accords with the five principles, section 217(2)
permits public bodies to implement a preferential procurement policy. The
PPPFA requires organs of state to determine a preferential procurement
policy and to implement it.265
The process envisaged by the PPPFA is that:
• persons are invited to tender in respect of a formal tender proposal
• all applications are assessed in terms of evaluation criteria specifically
identified in the tender proposal
• the various bids are ranked in terms of each evaluation criteria.266
Section 2 of the PPPFA draws a distinction between contracts above the
prescribed amount 267 and contracts below the prescribed amount. In
respect of contracts above the prescribed amount, a maximum of 10 points
may be allocated for the specific goals identified in the PPPFA while in
respect of contracts below the prescribed amount a maximum of 20 points
may be allocated for the specific goals. The specific goals relate to
contracting with people who were historically disadvantaged by unfair
discrimination on the basis of race, gender, sex or disability or for the
purposes of implementing the Reconstruction and Development
Programme. Thus, a maximum of 10 points or 20 points, depending on the
contract price, may be assigned to historically disadvantaged individuals. In
terms of the regulations,268 a maximum of 90 or 80 points must be
assigned for price. The points allocated must be out of 100 and the person
scoring the highest points must be allocated the tender. Thus, the PPPFA
and the regulations adopt a fairly rigid system to ensure that price is
allocated the overwhelming segment of the points, but that equity issues are
not ignored.

SUMMARY

The Constitution does not only divide power vertically, but also
horizontally between the national, provincial and local spheres of
government. This horizontal division of power establishes a quasi-federal
system of government. Power is divided largely according to an integrated
model of federalism in which the subject matters in respect of which
policies and laws may be made are not strictly divided between the different
levels or spheres of government but are shared between them. To ensure
that this system works optimally, the Constitution also establishes the
principle of co-operative government, requiring the various spheres of
government to work together regardless of the political party in power
nationally, provincially or at local government level. The National Council
of Provinces (NCOP), the second House of the national legislature, plays an
important role in co-ordinating the legislative activities of the three spheres
of government.
The structures of government for the nine provinces largely mirror that
of the national sphere. A Premier elected by the provincial legislature heads
the provincial executive and can also be removed by the provincial
legislature. A province has executive authority in terms of those functional
areas listed in Schedules 4 (concurrent powers shared with the national
executive) and 5 (exclusive powers) of the Constitution. Provincial
legislatures operate largely in the same manner and according to the same
principles as the national legislature. However, provincial legislatures only
have one House and not two although their interests are represented in the
NCOP at national level. When both the national legislature and the
provincial legislature pass legislation on one of the areas listed in
Schedule 4, the provincial legislation shall prevail except if one of the
criteria set out in section 146 of the Constitution is present in which case
the national legislation shall prevail. It will only be permissible in
exceptional circumstances for the national legislature to pass legislation
relating to one of the areas exclusively reserved for provinces in Schedule 5
if this is authorised by section 44(2) of the Constitution. When determining
whether the subject matter of a Bill falls within Schedule 4 or Schedule 5,
we must apply the pith and substance test. This test must be distinguished
from the substantial measure test used to decide how to tag a national Bill
to decide on the procedure to be used to pass it.
In the constitutional dispensation, local government fulfils an important
role. Municipalities thus enjoy original and constitutionally entrenched
powers, functions, rights and duties that may be qualified or constrained by
law and only to the extent to which these are set out in section 152(1) of the
Constitution. Section 155 of the Constitution distinguishes between three
different categories of municipalities, namely:
• category A municipalities with exclusive municipal executive and
legislative authority in their area and which are referred to as
metropolitan municipalities
• category B municipalities which share their municipal executive and
legislative authority in their area with a category C municipality and
which are referred to as local municipalities
• category C municipalities with municipal executive and legislative
authority in an area which includes more than one municipality and
which are referred to as district municipalities.
The Constitution determines that a municipality has executive authority in
respect of and has the right to administer the local government matters
listed in Part B of Schedule 4 and Part B of Schedule 5 and any other matter
assigned to it by national or provincial legislation. In addition,
municipalities may make and administer by-laws for the effective
administration of the matters which they have the right to administer.
Conflicts between national and provincial laws and municipal laws are
resolved in terms of section 156(3) of the Constitution. This section
provides simply that, subject to section 151(4), a by-law that conflicts with
national or provincial legislation is invalid. An important consequence of
this provision is that a municipality must exercise its legislative and
executive authority within the parameters set by national or provincial
legislation. In the absence of any national or provincial law regulating a
local government matter, however, a municipality is free to determine the
content of its legislative and executive decisions.
The financial arrangements in the Constitution tilt power decisively in
favour of the national sphere of government as the power to collect revenue
is vested primarily in the national sphere of government. This is because
Chapter 13 of the Constitution restricts the power of the provincial and
local spheres of government to impose taxes. Although the Constitution
restricts the power of the provincial and local spheres of government to
impose taxes and thus to raise revenue, it compensates them for this loss by
granting them a right to an equitable share of revenue collected nationally.
Section 215(1) of the Constitution provides that the national, provincial and
municipal budgetary processes must promote transparency, accountability
and the effective financial management of the economy, debt and the public
sector. Section 217 of the Constitution also makes it imperative for an organ
of state in the national, provincial or local sphere to contract for goods and
services in a manner that is fair, equitable, transparent, competitive and
cost-effective.

1 Huglin, TO and Fenna, A (2006) Comparative Federalism: A Systematic Inquiry 61.

2 Huglin and Fenna (2006) 61.
3 Prior to 1994, South Africa had a unitary system of government. While provincial and local
spheres of government existed, they were subservient to and subject to the control of a strong
central government where all meaningful decisions were made. The constitutional system prior
to 1994 was thus a unified one with little divergence in laws between the various provinces.
4 The National States Citizenship Act 26 of 1970 provided that every black person would
become a citizen of the tribal entity to which he or she had a tribal or cultural affiliation and
would simultaneously cease to be a citizen of South Africa. The fact that they did not live in
that entity nor desired the new citizenship was irrelevant. The apartheid government described
this as a process of internal decolonisation. In reality, it was nothing other than
denationalisation. The homelands were impoverished parcels of land cobbled together to create
‘independent states’. They were totally dependent on the South African state for their financial
survival and were provided with monthly grants. Towards the end of the 1980s, most of the
independent homelands had collapsed into military dictatorships and were dysfunctional. The
apartheid grand design had unravelled even before formal negotiations began. See also ch 1.
5 Haysom, N ‘Federal features of the final Constitution’ in Andrews, P and Ellmann, S (eds)
(2001) The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law 504.
6 See Woolman, S and Swanepoel, J ‘Constitutional history’ in Woolman, S and Bishop, M (eds)
(2013) Constitutional Law of South Africa 2nd ed rev service 5 2.37. For a more detailed
discussion of the approach adopted by the different political parties during the process of
 negotiations, see Spitz, R and Chaskalson, M (2000) The Politics of Transition: A Hidden
History of South Africa’s Negotiated Settlement 122.
7 African National Congress 53rd National Conference Resolutions 4. Legislature and
Governance 4.2.1 28 available at http://www.anc.org.za/docs/res/2013/resolutions53r.pdf.
8 Principle XVI of Schedule 4 of the interim Constitution.
9 Principle XVIII.
10 Principle XIX.
11 Principle XXI.
12 Principle XXII.
13 Principle XXIII.
14 Principle XXIV.
15 Principle XXVI.
16 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) para 472.
17 First Certification paras 480–1.
18 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996)
paras 109–10.
19 It has been argued that the description of the various facets as spheres as opposed to levels was
meant to convey the notion of parity of esteem and responsibility between the different
spheres. See Woolman, S and Roux, T ‘Co-operative government and intergovernmental
relations’ in Woolman and Bishop (2013) 14.1ff.
20 Freedman, DW ‘Constitutional law: Structures of government’ in Joubert, WA (ed) (2012) Law
of South Africa 2nd ed Vol 5 Part 4 para 57.
21 Freedman (2012) para 57.
22 Freedman (2012) para 57.
23 Freedman (2012) para 57.
24 Act 84 of 1996.
25 S 100 of the Constitution. See Centre for Child Law and Others v Minister of Basic Education
and Others (1749/2012) [2012] ZAECGHC 60; [2012] 4 All SA 35 (ECG); 2013 (3) SA 183
(ECG) (3 July 2012).
26 S 40(1).
27 S 40(2).
28 S 41(1)(e) of the Constitution.
29 S 41(1)(f) of the Constitution.
30 S 41(1)(g) of the Constitution.
31 S 41(1)(h) of the Constitution.
32 S 41(3).
33 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June
2001).
34 Langeberg paras 27–9.
35 Langeberg para 31.
36 (CCT7/02) [2002] ZACC 11; 2002 (11) BCLR 1220; 2003 (1) SA 678 (CC) (12 June 2002)
para 18.
37 First Certification para 291.
38 Uthukela para 14.
39 Uthukela para 13.
40 Act 13 of 2005.
41 S 2 of the IGRFA.
42 S 4 of the IGRFA.
43 S 4(a)–(d) of the IGRFA.
44 S 6 of the IGRFA.
45 S 9 of the IGRFA.
46 S 18 of the IGRFA.
47 S 24 of the IGRFA.
48 See Steytler, N ‘Co-operative and coercive models of intergovernmental relations: A South
African case study’ in Courchene, TJ and Allen, JR (eds) (2011) The Federal Idea: Essays in
Honour of Ronald L. Watts 413–28.
49 S 35.
50 S 35(3) of the IGRFA.
51 S 39(1)(b) of the IGRFA.
52 S 1 of the IGRFA.
53 S 40 of the IGRFA.
54 S 41 of the IGRFA.
55 S 42 of the IGRFA.
56 S 42(3) of the IGRFA.
57 S 43 of the IGRFA.
58 S 125(2)(c) of the Constitution.
59 S 103(1) of the Constitution.
60 Ss 104–124.
61 Ss 125–141.
62 S 142 of the Constitution.
63 Constitution of the Western Cape of 1998.
64 See Certification of the Kwazulu-Natal Constitution (CCT15/96) [1996] ZACC 17; 1996 (11)
BCLR 1419; 1996 (4) SA 1098 (6 September 1996).
65 Certification of the Kwazulu-Natal Constitution para 8. See also Certification of the
Constitution of the Western Cape, 1997 (CCT6/97) [1997] ZACC 8; 1997 (12) BCLR 1653;
1998 (1) SA 655 (2 September 1997) para 8.
66 S 104(1)(b)(i) of the Constitution.
67 S 104(1)(b)(ii) of the Constitution.
68 S 104(1)(b)(iii) of the Constitution.
69 S 104(1)(b)(iv) of the Constitution.
70 S 104(1)(c) of the Constitution.
71 S 104(2) of the Constitution.
72 S 104(4).
73 S 105(2) of the Constitution. The legislation referred to in s 105(2) is the Electoral Act 73 of
1998. The formula for determining the number of members of each provincial legislature is set
out in Schedule 3 of the Electoral Act.
74 S 13 of the Constitution of the Western Cape determines the size to be 42.
75 S 106 of the Constitution.
76 S 109 of the Constitution.
77 S 113 of the Constitution.
78 S 125(2) of the Constitution.
79 S 125(3) of the Constitution.
80 S 125(3) of the Constitution.
81 S 125(4) of the Constitution.
82 S 126 of the Constitution.
83 S 128 of the Constitution.
84 (CCT 94/10) [2011] ZACC 25; 2011 (11) BCLR 1181 (CC); 2011 (6) SA 396 (CC) (11 August
2011).
85 S 121 of the Constitution enables the Premier of a province to refer a Bill back to the
provincial legislature if he or she has misgivings about the constitutionality of the Bill. The
section goes on to provide that if the reservations are not adequately addressed by the
provincial legislature, the Premier may refer the Bill to the Constitutional Court for a decision.
86 Act 10 of 2009. S 104(1)(b)(iii) of the Constitution provides that each provincial legislature has
the power ‘to pass legislation for its province with regard to any matter outside (the functional
areas listed in Schedules 4 and 5), and that is expressly assigned to the province by national
legislation’.
87 S 104(1)(b)(iv) of the Constitution provides that each provincial legislature has the power ‘to
pass legislation for its province with regard to any matter for which a provision of the
Constitution envisages the enactment of provincial legislation’.
88 Premier: Limpopo Province para 24.
89 Premier: Limpopo Province para 24.
90 Premier: Limpopo Province para 21.
91 Premier: Limpopo Province para 23.
92 Premier: Limpopo Province paras 34–9.
93 Premier: Limpopo Province para 36.
94 Premier: Limpopo Province para 37.
95 Premier: Limpopo Province para 38.
96 Premier: Limpopo Province para 39.
97 Premier: Limpopo Province para 40.
98 Premier: Limpopo Province para 41.
99 Premier: Limpopo Province para 41.
100 Premier: Limpopo Province para 53.
101 Premier: Limpopo Province para 60.
102 Premier: Limpopo Province para 85.
103 Premier: Limpopo Province para 85.
104 Premier: Limpopo Province para 85.
105 Premier: Limpopo Province para 92.
106 For a critical discussion of this judgment, see Steytler, N and Williams, RF (2012) Squeezing
out provinces’ legislative competence in Premier: Limpopo Province v Speaker: Limpopo
Provincial Legislative and Others I and II South African Law Journal 129(4):621–37.
107 S 146(5) of the Constitution.
108 (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November 1999).
109 Liquor Bill para 55.
110 Liquor Bill para 39.
111 Liquor Bill para 39.
112 Liquor Bill para 46.
113 Liquor Bill para 47.
114 Liquor Bill para 50.
115 Liquor Bill para 51.
116 Liquor Bill para 61.
117 Liquor Bill para 73.
118 Liquor Bill para 75.
119 Liquor Bill para 76.
120 Liquor Bill para 86.
121 Liquor Bill paras 59–60.
122 Liquor Bill para 76.
123 (CCT12/09) [2009] ZACC 31; 2010 (2) BCLR 99 (CC) (14 October 2009).
124 Act 6 of 2007.
125 Abahlali para 20.
126 Abahlali para 21.
127 Abahlali para 26.
128 Abahlali para 29.
129 Abahlali para 30.
130 Abahlali para 37.
131 Abahlali para 40.
132 Act 19 of 1998.
133 Abahlali para 92.
134 See In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995, In re:
Payment of Salaries. Allowances and Other privileges to the Ingonyama Bill of 1995
(CCT1/96, CCT6/96) [1996] ZACC 15; 1996 (7) BCLR 903; 1996 (4) SA 653 (5 July 1996).
See also Bronstein, V ‘Conflicts’ in Woolman and Bishop (2013) 16.4.
135 (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995).
136 Klaaren, J ‘Federalism’ in Chaskalson, M et al (eds) (1999) Constitutional Law of South Africa
1st ed 5–12.
137 S 146(1) of the Constitution.
138 S 149 of the Constitution.
139 S 146(2)(a) of the Constitution.
140 S 146(2)(b) of the Constitution.
141 S 146 (2)(c) of the Constitution.
142 (CCT 67/03) [2004] ZACC 6; 2005 (2) SA 476 (CC); 2004 (12) BCLR 1243 (CC)
(6 September 2004).
143 Act 59 of 1992.
144 This was the predecessor of s 146 of the final Constitution.
145 Mashavha para 57.
146 Bronstein (2013) 16.19.
147 Mashavha para 51.
148 Mashavha para 57.
149 (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October
2009) para 34.
150 Act 32 of 2000.
151 Joseph para 39.
152 (CCT 19/04) [2004] ZACC 21; 2005 (2) SA 323 (CC) (29 November 2004). See also Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October
1998) para 38 and CDA Boerdery (Edms) Bpk en Andere v Nelson Mandela Metropolitan
Municipality (526/05) [2007] ZASCA 1; [2007] SCA 1 (RSA) (6 February 2007) para 33.
153 City of Cape Town para 60.
154 City of Cape Town para 60.
155 Act 117 of 1998.
156 Steytler, N and De Visser, J ‘Local government’ in Woolman and Bishop (2013) 22.20.
157 Act 27 of 1998.
158 (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC) (27 February
2006).
159 Act 23 of 2005.
160 Matatiele Municipality para 41.
161 Matatiele Municipality para 41.
162 Matatiele Municipality para 41.
163 S 7 of the Municipal Structures Act.
164 S 8 of the Municipal Structures Act.
165 S 9 of the Municipal Structures Act.
166 S 10 of the Municipal Structures Act.
167 S 155(4) of the Constitution.
168 City of Cape Town para 55.
169 S 156(1)(a) of the Constitution.
170 S 156(1)(b) of the Constitution.
171 S 156(2).
172 A municipality also has those powers that have been granted to it by its own by-laws.
173 See Steytler and De Visser (2013) 22.47.
174 (CCT89/09) [2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) (18 June
2010). See also Maccsand (Pty) Ltd v City of Cape Town and Others (CCT103/11) (CC) [2012]
ZACC 7; 2012 (4) SA 181 (CC); 2012 (7) BCLR 690 (CC) (12 April 2012).
175 See also Steytler and De Visser (2013) 22.21–22.22.
176 Steytler and De Visser (2013) 22.21–22.22.
177 Gauteng Development Tribunal para 57.
178 Gauteng Development Tribunal para 57.
179 Gauteng Development Tribunal para 57.
180 Gauteng Development Tribunal para 58.
181 Gauteng Development Tribunal para 63.
182 Gauteng Development Tribunal para 63.
183 S 44(1) of the Constitution.
184 S 104(1) of the Constitution.
185 Schedule 4 of the Constitution.
186 Schedule 5 of the Constitution.
187 Gauteng Development Tribunal para 43.
188 Gauteng Development Tribunal para 59.
189 This mode of assignment only takes effect upon a proclamation by the President or the
Premier.
190 See Steytler and De Visser (2013) 22.61.
191 (9714/11) [2013] ZAKZPHC 6 (30 January 2013).
192 Le Sueur para 19.
193 Le Sueur para 19.
194 Le Sueur para 22.
195 Le Sueur para 25.
196 Le Sueur para 39.
197 Act 103 of 1977.
198 Freedman (2012) para 231–5.
199 First Certification para 372.
200 S 155(6) of the Constitution also provides that each provincial government must, by legislative
or other measures, provide for the monitoring and support of local government in the province
 and promote the development of local government capacity to enable municipalities to perform
their functions and to manage their own affairs.
201 First Certification para 371.
202 First Certification para 371.
203 First Certification para 372.
204 First Certification para 373.
205 First Certification para 375.
206 See Mnquma Local Municipality and Another v Premier of the Eastern Cape and Others
(231/2009) [2009] ZAECBHC 14 (5 August 2009).
207 See Premier of the Western Cape and Others v Overberg District Municipality and Others
(801/201) [2011] ZASCA 23; 2011 (4) SA 441 (SCA); [2011] 3 All SA 385 (SCA) (18 March
2011).
208 First Certification para 376.
209 First Certification para 370.
210 Murray, C and Simeon, R (2000) South Africa’s financial Constitution: Towards better
delivery? SA Public Law 15(2):477–504 at 477.
211 Murray and Simeon (2000) 479.
212 Murray and Simeon (2000) 479. A conditional grant is one in which the money that has been
transferred must be used for a specific purpose and not for any other purpose. An unconditional
grant is one in which the money can be used by the recipient for any purpose.
213 Murray and Simeon (2000) 480.
214 Kriel, R and Monadjem, M ‘Public finance’ in Woolman and Bishop (2013) 27.8.
215 S 228(2) of the Constitution.
216 Act 53 of 2001.
217 S 229(2) of the Constitution.
218 Act 6 of 2004.
219 Act 12 of 2007.
220 Act 79 of 1984.
221 (149/2011) [2012] ZASCA 104; 2013 (1) SA 564 (SCA) (1 June 2012).
222 Act 3 of 1994.
223 Ingonyama Trust para 11.
224 Ingonyama Trust para 11.
225 Ingonyama Trust para 8.
226 Ingonyama Trust para 8.
227 Ingonyama Trust para 8.
228 Act 101 of 1998.
229 Act 84 of 1998.
230 Ingonyama Trust para 10; Act 84 of 1996.
231 Act 97 of 1997.
232 S 9(1) of the Intergovernmental Fiscal Relations Act.
233 S 10(3) of the Intergovernmental Fiscal Relations Act.
234 Ss 2 and 5 of the Intergovernmental Fiscal Relations Act. The Budget Council consists of the
Minister of Finance and the MEC for Finance in each province, while the Budget Forum
consists of the Minister of Finance, the MEC for Finance in each province, five representatives
from the national body representing organised local government and one representative from
each of the provincial bodies representing organised local government.
235 S 10(1) of the Intergovernmental Fiscal Relations Act.
236 The provincial government equitable formula consists of six components: an education
component, a health component, a basic share component, an institutional component, a
poverty component and an economic output component. The local government equitable
formula consists of five components: a basic services component, an institutional support
component, a development component, a revenue-raising capacity correction and a correction
and stabilisation factor (see the Explanatory Memorandum to the Division of Revenue Bill
2013).
237 S 215(3) of the Constitution.
238 Premier: Limpopo Province para 26.
239 Act 1 of 1999.
240 S 27(2) of the PFMA.
241 S 5 of the PFMA.
242 S 6 of the PFMA.
243 S 17 of the PFMA.
244 S 18 of the PFMA.
245 Act 90 of 1989.
246 The Role and Functions of the South African Reserve Bank available at
http://www.resbank.co.za/AboutUs/Functions/Pages/default.aspx.
247 S 217(2) of the Constitution.
248 Act 5 of 2000.
249 (31/2007) [2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA
481; 2008 (5) BCLR 508; 2008 (2) SA 481 (SCA) (29 November 2007).
250 Act 3 of 2000.
251 Millennium Waste Management para 21.
252 Millennium Waste Management para 16.
253 Millennium Waste Management para 17.
254 Millennium Waste Management para 17.
255 Millennium Waste Management para 17.
256 Millennium Waste Management para 18.
257 Millennium Waste Management para 19.
258 Millennium Waste Management para 21.
259 (189/06, 244/06) [2007] ZASCA 26; [2007] SCA 26 (RSA); [2007] 3 All SA 115 (SCA)
(27 March 2007).
260 Phoenix Cash & Carry para 1.
261 Phoenix Cash & Carry para 2.
262 Phoenix Cash & Carry para 17.
263 Phoenix Cash & Carry para 2.
264 Phoenix Cash & Carry para 2.
265 S 2 of the PPPFA.
266 See the discussion by Penfold, G and Reyburn, P ‘Public procurement’ in Woolman and
Bishop (2013) 25.16.
267 The prescribed amount at the time of writing is R1 000 000.
268 GN R502, GG 34350, 8 June 2011.
PART TWO

The Bill of Rights and the

enforcement of the
Constitution

CHAPTER 9 Introduction to and application of the Bill of

Rights

CHAPTER 10The limitation of rights

CHAPTER 11Constitutional remedies

CHAPTER 12Equality, human dignity and privacy rights

CHAPTER 13Diversity rights

CHAPTER 14Political and process rights

CHAPTER 15Administrative justice, access to information,

access to courts and labour rights

CHAPTER 16Socio-economic rights

Introduction to and application of
the Bill of Rights

9.1 Introduction
9.2 The structure of Bill of Rights litigation
9.3 The application of the Bill of Rights
9.3.1 Who is entitled to claim the rights in the Bill of Rights?
9.3.1.1 Introduction
9.3.1.2 Natural persons
9.3.1.3 Juristic persons
9.3.1.4 Standing to enforce rights
9.3.2 Who is bound by the rights in the Bill of Rights?
9.3.2.1 Introduction
9.3.2.2 The direct vertical application of the Bill of Rights
9.3.2.2.1 Introduction
9.3.2.2.2 All organs of state
9.3.2.3 The direct horizontal application of the Bill of Rights
9.3.2.4 The indirect application of the Bill of Rights
9.3.2.4.1 Introduction
9.3.2.4.2 The indirect application of the Bill of Rights to
legislation
9.3.2.4.3 The indirect application of the Bill of Rights to the
common law and customary law
 Summary

9.1 Introduction
The South African Bill of Rights – constructed in a manner to give effect to
the transformative vision of the Constitution – sets out a unique human
rights vision. Its breadth of application – to both the state and, in many
cases, to private parties – and the range of rights protected in it, establishes
the Bill of Rights as a post-liberal text aimed at facilitating the social and
economic transformation of South Africa while protecting the human
dignity of all. However, before we look at the various rights protected by
the Bill of Rights, it is necessary to deal with several important technical
issues regarding Bill of Rights adjudication. This is because the structure of
Bill of Rights litigation differs from litigation dealing with other alleged
breaches of the Constitution.
When confronted with the question of whether law or conduct is in
breach of the Bill of Rights, several preliminary questions arise. First, a
court must ask whether the person or organisation which claims that their
rights have been infringed is entitled to the protection provided by the Bill
of Rights and whether the person or organisation which wishes to approach
the court has standing to bring the case. While most of the rights in the Bill
of Rights are granted to everyone, including non-citizens, some are
specifically restricted. There are also complicated rules to determine
whether juristic persons can claim the protection of the Bill of Rights.
Once the court has established that the person or organisation which
claims that their rights have been infringed is covered by the Bill of Rights,
it must ask whether the person or organisation which is alleged to have
infringed the rights is bound by the Bill of Rights. The South African Bill of
Rights does not bind only the state but, when applicable in accordance with
complicated provisions in the Constitution, also private individuals and
organisations.
After the court has established that the rights of a natural or juristic
person have been infringed, it has to determine whether the infringement is
justifiable in terms of the limitation clause set out in section 36. If the court
finds that the limitation is justifiable, the infringement is ‘saved’ and the
law or conduct is constitutionally valid. However, if the court finds that the
limitation is not justifiable, then an infringement cannot be saved and the
law or conduct is unconstitutional and invalid.
Law or conduct which unjustifiably infringes the Bill of Rights must be
declared invalid. Apart from a declaration of invalidity, however, there are a
number of other constitutional remedies a court may issue. Among these are
declaratory orders, prohibitory interdicts, mandatory interdicts, structural
interdicts, constitutional damages and meaningful engagement.
This chapter, as well as chapters 10 and 11, deal with the technical
questions relating to Bill of Rights adjudication. While we will discuss the
substantive scope and content of the various rights in subsequent chapters,
it is important first to answer the relevant preliminary questions about the
manner in which Bill of Rights adjudication should proceed. These
questions include the following:
• Who can claim the rights protected in the Bill of Rights and who is
bound to respect the same rights?
• Can the rights be claimed only by people or also by organisations, and if
the latter, when?
• Are the rights only binding on the state or are private parties also bound
to respect the rights?
• To what extent and how can rights be legally limited and in which
situations?
• If there is an infringement of a right, how can that infringement be
remedied to ensure that the person whose rights have been infringed can
be assisted?

9.2 The structure of Bill of Rights litigation

When a person alleges that the state or another person has infringed a
fundamental right, the process that a court must follow to determine
whether this allegation is valid or not is usually divided into three stages,
namely an application stage, a limitation stage and a remedies stage: 1
• During the application stage, the court has to answer a number of
questions. The two most important are:
 – Can X go to court to claim his or her right was infringed?
– Is the person who allegedly infringed X’s rights bound by the duties
imposed by the right? 2
• During the limitation stage, the court also has to answer a number of
questions. The two most important are:
– What is the scope of the right and does the law or conduct infringe the
right?
– If it does, is the infringement justifiable in terms of the limitation
clause set out in section 36 of the Constitution? 3
• During the remedies stage, the court has to decide what the most
appropriate remedy would be. It is important to note, however, that this
stage arises only in those cases in which the court has found that law or
conduct unjustifiably infringes a fundamental right or does not promote
the values in the Bill of Rights.4

Figure 9.1 The three stages of Bill of Rights adjudication

The constitutional provisions that regulate these questions are set out in the
operational provisions of the Bill of Rights. Unlike the substantive
provisions dealing with specific rights, the operational provisions do not
regulate the substance of the fundamental freedoms and rights that are
guaranteed in the Bill of Rights. Instead, they regulate the manner in which
the Bill of Rights operates and the manner in which it can be enforced by
the courts.5
The operational provisions are:
• section 7: the state’s duty to respect, protect, promote and fulfil the
rights in the Bill of Rights
• section 8: who the right binds
• section 36: the limitation of rights
• section 37: the suspension of rights in a state of emergency
• section 38: who has standing to enforce the rights
• section 39: the interpretation of rights.
Apart from these operational provisions, sections 167 and 172 of the
Constitution also regulate the enforcement of the Bill of Rights. These
provisions deal with the jurisdiction of the courts, especially in
constitutional matters, and the remedies that the courts may grant when a
provision of the Bill of Rights has been unjustifiably infringed.

PAUSE FOR REFLECTION

Classifying rights
As we have already seen, the substantive provisions of
the Bill of Rights are those provisions that regulate the
actual substance of the rights that are entrenched and
protected in the Bill of Rights. These rights may be
classified in a number of different ways and some rights
may fall into more than one category.
One of the most widely used methods of classifying
rights is to draw a distinction between civil and political
rights, on the one hand, and social and economic rights on
the other hand. This classification is based on the
distinction drawn between the rights protected in the
International Covenant on Civil and Political Rights
(ICCPR)6 and the rights protected in the International
Covenant on Economic, Social and Cultural Rights
(ICESCR).7
Civil and political rights are aimed at protecting people
from unlawful interference by the state, private
organisations and individuals and at guaranteeing the
ability of everyone to participate fully in the civil and
political life of the state. Civil and political rights include the
right to equality, the right to freedom of expression, the
right to a fair trial, the right to freedom of assembly and the
right to elections and to vote.8
Social and economic rights include the right to
education, the right to housing, the right to health and the
right to social security. They impose an obligation on the
state not to interfere with the existing enjoyment of these
rights and, where applicable, to take positive steps to
provide people with the resources and the services they
need to live a decent, fulfilling and minimally good life.9
Another common method of classifying human rights is
to draw a distinction between first generation, second
generation and third generation rights. This classification is
based on the historical development of human rights.
First generation rights are the oldest. They arose in
the eighteenth century and were included in the American
Bill of Rights (1789–1791) and the French Declaration of
the Rights of Man and Citizen (1789). First generation
rights consist largely of traditional civil and political rights.
Sometimes they are also referred to as blue rights.10
Second generation rights arose at the end of the
nineteenth century and the beginning of the twentieth
century. They were included in the 1931 Constitution of
Spain and the 1936 Constitution of the Union of Soviet
Socialist Republics. Second generation rights consist
largely of social and economic rights. Sometimes they are
also referred to as red rights.11
 Third generation rights are the most recent and arose
towards the end of the twentieth century. Third generation
rights include the right to self-determination, the right to
development and the right to a healthy environment.
Sometimes they are also referred to as green rights.12
While the classifications set out above provide us with
some insights into the history and nature of the rights
protected in the Bill of Rights, it is important to note that the
Bill of Rights itself does not classify or categorise rights in
any of these ways. Although the Bill of Rights contains
examples of the different categories or generations of
rights, it does not distinguish in any way between the
various rights.
Implicit, therefore, in the Bill of Rights is the idea that our
Constitution does not create a hierarchy of rights.13 Rather
than drawing hard and fast distinctions between the rights,
the courts have been mindful to show the rights in the Bill
of Rights as being interrelated, interdependent and
mutually supporting.

9.3 The application of the Bill of Rights

During the application stage a court has to decide who is entitled to claim
the right in question and who is bound by the right in question.14 In
addition, it also has to decide whether the Bill of Rights applies directly or
indirectly to the dispute before it.15
When the Bill of Rights applies directly, the purpose is to determine
whether the ordinary rules of law (legislation, common law and customary
law) are consistent with the Bill of Rights. If they are not, the Bill of Rights
overrides the ordinary rules of law. In these cases, the Bill of Rights also
generates its own set of special remedies, for example declaratory orders,
structural interdicts, constitutional damages and meaningful engagement.16
 When the Bill of Rights applies indirectly, the purpose is to determine
whether the ordinary rules of law promote the values of the Bill of Rights.
If they do not, the Bill of Rights does not override the ordinary law nor does
it generate it own special remedies. Instead, the court uses the Bill of Rights
to develop the rules and remedies of the ordinary law to avoid any
inconsistency between the ordinary law and the Bill of Rights.17
We consider each of these issues in turn in the next sections.

9.3.1 Who is entitled to claim the rights in the Bill of

Rights?

9.3.1.1 Introduction
In most cases, ‘everyone’ can claim the rights contained in the Bill of
Rights. This includes everyone present in South Africa as well as non-
citizens. A limited number of rights are qualified in that only ‘citizens’,18
‘children’ 19 or ‘detained’ persons can claim them.20 When a specific
provision states that ‘everyone’ can claim the right, it usually means that
natural persons 21 can claim the right and, in some cases, also juristic
persons.22 However, as we shall see, not all rights can be claimed by
juristic persons.

9.3.1.2 Natural persons

Most of the rights in the Bill of Rights are for the benefit of ‘everyone’.
Section 9(1), for example, provides that ‘everyone is equal before the law
and has the right to equal protection and benefit of the law’; section 11 that
‘everyone has the right to life’; and section 13 that ‘no one may be
subjected to slavery, servitude and forced labour’.
The courts have interpreted the reference to everyone to refer not only to
South African citizens, but also to various categories of immigrants, be they
permanent residents 23 or persons present in South Africa on the basis of a
temporary permit such as a work permit or a study permit.24 Even
foreigners who have yet to be lawfully admitted into South Africa have
been recognised as being beneficiaries of the rights guaranteed in the Bill of
Rights.25 The term ‘everyone’, however, does not include a foetus.26
While most of the rights in the Bill of Rights are for the benefit of
‘everyone’, some are for the benefit of a narrower category of persons only.
Section 19(1)(a), for example, provides that ‘every citizen is free to make
political choices, which includes the right to form a political party’;
section 23(2)(a) that ‘every worker has the right to form and join a trade
union’; and section 28(1)(a) that ‘every child has the right to a name and a
nationality from birth’. Only those natural persons who fall into the
definition of the category in question may claim these rights.27
To determine whether a particular person may claim such a right, the
courts will have to interpret the scope of the category in question. In South
African National Defence Union v Minister of Defence,28 for example,
members of the South African National Defence Force claimed that they
were entitled to form and join a trade union in terms of section 23(2)(a) of
the Constitution. To decide whether this claim was valid, the Constitutional
Court had to establish whether the word ‘worker’ was wide enough to
include members of the armed forces. In its judgment, the Constitutional
Court found that the word ‘worker’ was indeed wide enough to include
members of the armed forces. The Court based its decision on the fact that
members of the armed forces receive many of the same benefits as other
employees, for example a salary.29 In addition, the International Labour
Organisation considers members of the armed forces to be workers for the
purposes of the Convention on the Freedom of Association and Protection
of the Right to Organise 87 of 1948 and the Convention on the Right to
Organise and Collective Bargaining 98 of 1949, both of which South Africa
has signed and ratified.30

9.3.1.3 Juristic persons

It seems self-evident that individual human beings are entitled to the
protection provided by the rights in the Bill of Rights. But what about other
non-human bodies? Can a big corporation claim to have a right to free
speech? Can a religious group claim the right to bodily integrity. Can the
human dignity of a tennis club be infringed? Can a trade union claim it has
a right not to be discriminated against?
In terms of the Constitution, apart from natural persons, juristic persons,
such as churches, companies, trade unions and universities that have legal
personality, may also claim some of the rights in the Bill of Rights in
certain circumscribed circumstances. It is, however, important to note that
unlike human beings, these juristic persons will not always be able to claim
protection of a right. Section 8(4) of the Constitution provides in this
respect that ‘[a] juristic person is entitled to the rights in the Bill of Rights
to the extent required by the nature of the rights and the nature of that
juristic person’.
This provision, while recognising juristic persons as bearers of rights,
suggests that the rights that juristic persons can claim will be the subject of
interpretation by the courts. To determine whether a juristic person can
claim a particular right, therefore, the courts have to take into account at
least two factors, namely:
• the nature of the right being invoked
• the nature of the juristic person in question.
In so far as the first factor is concerned, it is quite clear that there are some
rights which by their very nature cannot be claimed by juristic persons, for
example the right to life (section 11), the right to vote (section 19) and the
right to health care, food and social security (section 27). This is because
juristic persons cannot enjoy these rights as the rights are peculiarly related
to individual human beings. Juristic persons are not alive, they cannot vote
and they do not require health care, food or social security.31 There are,
however, other rights which juristic persons may claim, for example the
rights to equality (section 9); privacy (section 14); freedom of expression
(section 16); freedom of association (section 18); property (section 25);
access to information (section 32); just administrative action (section 33);
and access to courts (section 34). There is nothing in the nature of these
rights which prevents juristic persons from enjoying them.32
In so far as the second factor is concerned, a distinction may be drawn
between those juristic persons which can claim the rights in the Bill of
Rights and those which cannot. This distinction is based on the aim or
purpose of the juristic person in question.33 If natural persons established
the juristic person to help them achieve their rights, the juristic person may
be entitled to claim the rights in the Bill of Rights. For example, a church or
a media company which has legal personality may be entitled to claim the
right to religious freedom or the right to freedom of expression. This is
because natural persons established the church or the media company to
help them achieve those particular rights.34
If, however, the juristic person was not created by natural persons to help
them achieve their human rights, it may not be entitled to claim the rights in
the Bill of Rights. For example, organs of state such as Parliament or the
President may not be entitled to claim any rights in the Bill of Rights. This
is because their purpose is to exercise the powers that have been given to
them in a way that promotes and protects the rights of the people. They are
not, therefore, entitled to the rights in the Bill of Rights. Instead, they are
bound by them.35

COUNTER POINT

Controversy about the entitlement of juristic

persons to some of the rights in the Bill of
Rights
The fact that juristic persons are entitled to claim the
benefit of some of the rights in the Bill of Rights has
caused much controversy. This is because juristic persons
frequently want to claim these rights simply to promote
their business interests and to make a profit. The debate
about whether such juristic persons can claim rights is
often ideological and pro-business supporters of the free
market system often support wider protection for juristic
persons. This was illustrated during the United States
presidential campaign in 2012 when the Republican
candidate, Mitt Romney, said at a campaign stop:
‘Corporations are people, my friend.’ 36
 The fact that section 8(4) of the Constitution allows
juristic persons to claim the benefits of some of the rights in
the Bill of Rights was, therefore, challenged in Certification
of the Constitution of the Republic of South Africa, 1996.37
In this case, the challengers argued that by allowing juristic
persons to claim some of the rights in the Bill of Rights,
section 8(4) reduced the protection the Bill of Rights gave
to natural persons.
The Constitutional Court, however, rejected this
argument on the grounds that natural persons often come
together and form a juristic person to help them achieve
and protect their fundamental rights. For example, natural
persons may establish a media company to achieve and
protect the right to freedom of expression. That media
company must, therefore, have the power to claim the
benefits and protection of the rights in the Bill of Rights.38

9.3.1.4 Standing to enforce rights

It is important to note that the requirements set out in section 8(4) of the
Constitution have not played a significant role in practice. This is because
the Constitution has adopted a generous approach towards legal standing.
Section 38 of the Constitution provides in this respect that:
Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights
has been infringed or threatened, and the court may
grant appropriate relief, including a declaration of
rights. The persons who may approach a court are:
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who
cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a
group or class of persons;
(d) anyone acting in the public interest;
 (e) an association acting in the interest of its members.
The Constitutional Court has considered the scope and ambit of section 38
on a number of occasions.39 In these cases, the Court has held that a
complainant does not have to show that he or she has a ‘direct and personal
interest’ in the relief claimed.40 Instead, a complainant simply has to:
• allege that one of the fundamental rights set out in the Bill of Rights has
been infringed or threatened
• show that one of the categories of persons listed in section 38 of the
Constitution has a ‘sufficient interest’ in obtaining a remedy.41
An important consequence of this approach is that an applicant does not
have to allege that a particular person’s fundamental right has been
infringed or threatened. An applicant simply has to allege that a
fundamental right has been infringed or threatened.42
It is important to note, however, that it is not enough simply to allege
that a fundamental right has been infringed or threatened. In addition, a
complainant must also show that one of the categories of persons listed in
paragraphs (a) to (e) of section 38 of the Constitution has a sufficient
interest in the remedy the complainant is seeking.43 For example, if a
complainant approaches a court in terms of section 38(a) of the
Constitution, the complainant must show that he or she has a sufficient
interest. If a complainant approaches the court in terms of section 38(d) of
the Constitution, the complainant must show that the public has a sufficient
interest.
Although the Constitutional Court has adopted a generous approach to
standing, in Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others
it held that this does not mean that litigants, and especially own-interest
litigants, have a broad and unqualified capacity to litigate against
illegalities.44 An own-interest litigant must still show that he or she has a
‘sufficient interest’ in the relief he or she is applying for.
In this case, the Constitutional Court held that when it comes to deciding
whether a litigant does have a sufficient own-interest, a court must assume
that the act or decision being challenged is, in fact, unlawful. This is
because the question of standing is a point in limine which has to be
decided before the merits of the case. The merits of the case, therefore,
must be separated from the issue of standing.45
The separation of the merits of the case from the question of standing,
the Constitutional Court held further, has two important consequences for
an own-interest litigant:
• First, simply because the act or decision being challenged is unlawful
does not mean that the applicant has legal standing. To have standing, an
applicant must also have a sufficient interest in the lawfulness of the act
or decision in question.46
• Second, if an own-interest litigant does not have a sufficient interest, he
or she will be denied legal standing even though the result could be that
an unlawful act or decision stands.47
When a litigant acts solely in his or her own interest, therefore, there is no
broad or unqualified capacity to litigate against illegalities. Something more
must be shown.48 How much more, the Constitutional Court went on to
hold, has been set out in several of its previous judgments, especially
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others; 49 Minister of Home Affairs v Eisenberg & Associates In re:
Eisenberg & Associates v Minister of Home Affairs and Others; 50 and
Kruger v President of the Republic of South Africa and Others.51 A careful
examination of these judgments, the Constitutional Court noted, shows the
following:
1. To establish own-interest standing under the
Constitution a litigant need not show the same
‘sufficient personal and direct interest’ that the
common law requires, but must still show that a
contested law or decision directly affects his or her
rights or interests, or potential rights or interests.
2. This requirement must be broadly and generously
interpreted to accord with constitutional goals.
3. The interest must, however, be real and not
hypothetical or academic.
 4. Even under the requirements for common law
standing, the interest need not be capable of
monetary valuation, but in a challenge to legislation
purely financial self-interest may not be enough – the
interests of justice must also favour affording
standing.
5. Standing is not a technical or strictly-defined
concept. And there is no magical formula for
conferring it. It is a tool a court employs to
determine whether a litigant is entitled to claim its
time, and to put the opposing litigant to trouble.
6. Each case depends on its own facts. There can be no
general rule covering all cases. In each case, an
applicant must show that he or she has the necessary
interest in an infringement or a threatened
infringement.52
Apart from the requirements that must be satisfied when a person
approaches a court in his or her own interest, the Constitutional Court has
also considered the requirements a person must satisfy when he or she
approaches a court in the public interest.
In her minority judgment in Ferreira; Vryenhoek, O’Regan J held that a
person will be granted standing to act in the public interest only if he or she
is genuinely acting in the public interest.53 To determine whether a person
is genuinely acting in the public interest, the following factors must be
taken into account:
• whether there is another reasonable and effective manner in which the
challenge can be brought
• the nature of the relief sought and the extent to which it is of general and
prospective application
• the range of persons or groups who may be directly or indirectly affected
by any order made by the court and the opportunity that those persons or
groups have had to present evidence and argument to the court.54
Despite the fact that the approach set out above formed a part of O’Regan
J’s minority judgment, it was referred to with approval by the Constitutional
Court in its subsequent judgment in Lawyers for Human Rights and Other v
Minister of Home Affairs and Other.55 In this case, the Court held that even
though the approach adopted by O’Regan J formed a part of her minority
judgment, it was not inconsistent with anything said in the majority
judgment on the issue of standing. This is because the majority in Ferreira;
Vryenhoek found that the applicants were acting in their own interests and,
consequently, that it was not necessary also to consider whether they had
standing to act in the public interest.56
Besides referring to the approach adopted by O’Regan J with approval,
the Court in Lawyers for Human Rights also held that the list of relevant
factors is not closed. Other factors that should be taken into account include
the degree of vulnerability of the people affected, the nature of the right said
to be infringed and the consequences of the infringement of the right.57

9.3.2 Who is bound by the rights in the Bill of Rights?

9.3.2.1 Introduction
Once a court has determined who can claim rights in terms of the Bill of
Rights, it has to ask a second question, namely against whom can these
rights be claimed. In other words, the court has to ask who is bound to
respect the rights claimed by either a natural or juristic person. Although
‘everyone’ is entitled to claim the benefit of the rights (or at least most of
the rights) in the Bill of Rights, not everyone is bound by every right
contained in the Bill of Rights. This is because while the Bill of Rights is
always binding on the state, it is not always binding on private persons.
When it comes to the question of who is bound by the Bill of Rights, it is
important to distinguish between the direct application of the Bill of Rights
and the indirect application of the Bill of Rights:
• When the Bill of Rights applies directly, the purpose is to determine
whether the ordinary rules of law (legislation, common law and
customary law) are consistent with the Bill of Rights. If they are not, the
Bill of Rights overrides the ordinary rules of law. When the Bill of
Rights applies directly, it also generates its own set of special remedies,
for example reading down or reading in.58
• When the Bill of Rights applies indirectly, the purpose is to determine
whether the ordinary rules of law promote the values of the Bill of
Rights. If they do not, the Bill of Rights does not override the ordinary
law or generate its own special remedies. Instead, the Bill of Rights is
used to develop the rules and remedies of the ordinary law to avoid any
inconsistency between the ordinary law and the Bill of Rights.59
Apart from distinguishing between the direct and indirect application of the
Bill of Rights, it is also important to distinguish between the vertical
application of the Bill of Rights and the horizontal application of the Bill of
Rights:
• When the Bill of Rights applies vertically, it confers rights on private
persons and imposes obligations on the state to respect, protect, promote
and fulfil the rights in the Bill of Rights. It does not impose these
obligations on private persons. In other words, when the Bill of Rights
applies vertically, only the state is bound by the Bill of Rights. An
important consequence of this approach is that the Bill of Rights may be
applied directly to a legal dispute only if one of the parties to that dispute
is the state. We refer to a dispute in which one of the parties is the state
as a vertical dispute.60
• When the Bill of Rights applies horizontally, it not only confers rights
on private persons, but also imposes obligations on them to respect the
rights in the Bill of Rights, at least in certain circumstances. In other
words, when the Bill of Rights applies horizontally, both the state and
private persons are bound by the Bill of Rights. An important
consequence of this approach is that the Bill of Rights may be applied
directly to a legal dispute even if both of the parties to that dispute are
private persons. We refer to a dispute in which neither of the parties is
the state as a horizontal dispute.61
In South Africa, unlike in most other constitutional democracies, the Bill of
Rights applies not only directly and indirectly, but also vertically and
sometimes horizontally. Section 8(1) of the Constitution governs the direct
vertical application of the Bill of Rights while section 8(2) governs the
direct horizontal application. Section 39(2) of the Constitution governs the
indirect vertical and horizontal application of the Bill of Rights.
COUNTER POINT

When fundamental rights are abused by private

persons
In the many constitutional democracies such as the United
States, the Bill of Rights applies vertically and not
horizontally. This is because the state is considered to be
in a unique position to abuse or threaten the fundamental
rights of private persons. The reason why the state is
considered to be in a unique position to abuse or threaten
the fundamental rights of private persons is because
political or state authority is vested in the state. This means
that the state is more powerful than private persons and
that the relationship between them is always an unequal or
vertical one.
Unfortunately, this argument overlooks the fact that
fundamental rights may be abused or threatened not only
by the state but also by private persons. This is because
even though none of the parties in a private relationship
can be said to have political or state authority, it does not
necessarily follow that the relationship between private
persons is always an equal or horizontal one. Some private
organisations wield enormous power and can use this
power to infringe the rights of others. As a result of factors
such as the free market system and the privatisation of
state functions, it is quite clear that some private persons
are more powerful than others, for example banks,
insurance companies and those companies that provide
important services such as electricity and water.
Hutchinson, for example, argues that it is corporations
and not governments that pose the greatest threat to
individuals because they make the most crucial decisions
about human and economic resources. ‘There is no
choice,’ he argues, ‘in dealing with corporations, for their
 activities pervade the lives of every citizen. How we put
food on the table, what food we put on the table, what we
pay to put food on the table, and what food we think we
should put on the table are all questions that are deeply
shaped by the actions of corporations and the life-images
that they project.’ 62
Given that fundamental rights may be abused by private
persons, most constitutional scholars and human rights
activists have welcomed as a progressive step the fact that
the South African Bill of Rights ‘binds a natural or a juristic
person if, and to the extent that, it is applicable’.63

9.3.2.2 The direct vertical application of the Bill of Rights

9.3.2.2.1 Introduction
Section 8(1) of the Constitution governs the direct vertical application of
the Bill of Rights. This section stipulates in unqualified terms that ‘[t]he
Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state’.
Despite the fact that section 8(1) of the Constitution provides that the
Bill of Rights applies directly to ‘all law’, the Constitutional Court has held
that section 8(1) does not regulate the direct application of the Bill of Rights
to disputes between private persons that are governed by the common law
or customary law. This is because section 8(2) of the Constitution regulates
the direct application of the Bill of Rights to these horizontal disputes.64
For the same reasons, section 8(1) does not regulate the direct
application of the Bill of Rights to the judiciary when it is called on to
resolve a dispute between private parties that is governed by the common
law or customary law. This is because section 8(2) of the Constitution also
regulates the direct application of the Bill of Rights to the judiciary in these
horizontal disputes.65
The fact that section 8(2) rather than section 8(1) regulates the direct
application of the Bill of Rights to horizontal disputes was confirmed by the
Constitutional Court in its judgment in Khumalo and Others v Holomisa.66
The facts of this case were as follows. The respondent, who was a
prominent politician, sued the appellants, who were the publishers of a
newspaper, for defamation. The appellants, however, raised an exception to
the respondent’s claim. The exception was that the common law rules of
defamation infringed the constitutional right to freedom of expression
guaranteed in section 16 of the Constitution because they did not impose an
obligation on the plaintiff to prove that the defamatory statements were
false. Instead, they imposed an obligation on the defendant to prove that
they were true.
The Constitutional Court dismissed the exception. In arriving at this
decision, however, the Constitutional Court had to answer a number of
questions. One of these was whether section 16 of the Constitution applied
directly to the dispute even though it was governed by the common law and
neither of the parties was an organ of state.
To answer this question, the Constitutional Court stated it had to deal
with two issues:
• first, whether section 8(1) or section 8(2) of the Constitution governed
the direct horizontal application of the Bill of Rights
• second, if section 8(2) governed the direct horizontal application of the
Bill of Rights, whether section 16 satisfied the requirements of
section 8(2).67
In so far as the first issue was concerned, the Constitutional Court held that
section 8(2) and not section 8(1) governed the direct horizontal application
of the Bill of Rights. In arriving at its conclusion, the Constitutional Court
began by noting that sections 8(1) and 8(2) of the Constitution distinguish
between two categories of persons and institutions bound by the Bill of
Rights. Section 8(1) binds the legislature, executive, judiciary and all
organs of state without qualification, while section 8(2) provides that
natural and juristic persons are bound by the provisions of the Bill of
Rights, but only ‘to the extent that it is applicable, taking into account the
nature of the right and the nature of the duty imposed by the right’.68
Once a court has determined that a natural person is bound by a
particular provision of the Bill of Rights, the Constitutional Court noted
further, section 8(3) of the Constitution provides that the court must apply
and if necessary develop the common law to the extent that legislation does
not give effect to the right. In addition, it also provides that the rules of the
common law may be developed so as to limit a right as long as the
limitation is consistent with the provisions of section 8(3)(b).69
If section 8(1) of the Constitution governed the direct application of the
Bill of Rights to a horizontal dispute, the Constitutional Court went on to
note, the Bill of Rights would apply directly to horizontal disputes in all
circumstances and section 8(2) read together with section 8(3) would have
no purpose. To avoid such an absurd result, the direct application of the Bill
of Rights to horizontal disputes had to be governed by section 8(2) and not
by section 8(1).70
In so far as the second issue was concerned, the Constitutional Court
noted that the appellants were members of the media who were expressly
identified as bearers of constitutional rights to freedom of expression and
that there could be no doubt that the law of defamation does affect the right
to freedom of expression. The Constitutional Court noted further:
Given the intensity of the constitutional right in question,
coupled with the potential invasion of that right which
could be occasioned by persons other than the state or
organs of state, it is clear that the right to freedom of
expression is of direct horizontal application in this case
as contemplated by section 8(2) of the Constitution.71
Apart from these exceptions, section 8(1) of the Bill of Rights regulates the
direct application of the Bill of Rights:
• to disputes between the state and private parties that are governed by
legislation, the common law or customary law (‘all law’)
• to disputes between private parties that are governed by legislation, but
not by the common law or customary law.

COUNTER POINT
An interpretation of the Khumalo judgment
Following the Constitutional Court’s judgment in Khumalo,
it seems to be fairly clear that section 8(2) of the
Constitution regulates the direct application of the Bill of
Rights to disputes between private parties that are
governed by the common law or customary law. It is not
entirely clear, however, whether section 8(1) or section 8(2)
regulates the direct application of the Bill of Rights to
disputes between private parties that are governed by
legislation.
Although the judgment in Khumalo deals with the
common law of defamation, Woolman argues that the
Constitutional Court held, by implication, that section 8(2)
regulates the direct application of the Bill of Rights to
disputes between private parties that are governed not only
by the common law or customary law, but also by
legislation. In other words, section 8(2) regulates the direct
application of the Bill of Rights to all disputes between
private persons.72
If this interpretation of the judgment in Khumalo is
correct, he goes on to argue, then certain criticisms may be
levelled against it. Among these are the following:
• First, it defers – and potentially suppresses – the direct
application of the Bill of Rights to disputes between
private parties, irrespective of whether the dispute is
governed by legislation, the common law or customary
law.73
• Second, less law is subject to the direct application of
the Bill of Rights under the Khumalo Court’s reading of
the Constitution than it was under the Court’s reading of
the interim Constitution in Du Plessis and Others v De
Klerk and Another.74 This is because it was generally
accepted that the Bill of Rights in the interim Constitution
 did apply directly to disputes between private persons
governed by legislation.75
• Third, while the provisions of a statute or regulation may
not necessarily be subject to the direct application of the
Bill of Rights if the dispute was between two private
parties, they would automatically be subject to the direct
application of the Bill of Rights if the dispute was
between a private party and the state. This distinction is
absurd because it infringes the doctrine of objective
unconstitutionality. This doctrine provides, inter alia,
that constitutional cases, and thus the constitutionality of
laws, cannot be distinguished on the basis of the parties
before the court.76

Given the important obligations the Bill of Rights imposes on the bodies
and institutions that are bound by it, it is important to determine which
bodies and institutions fall within the scope of the words ‘legislature’,
‘executive’, ‘judiciary’ and ‘all organs of state’. While the Constitution
itself defines what is meant by the term ‘organ of state’, it does not define
what is meant by the words ‘legislature’, ‘executive’ and ‘judiciary’. This is
because the meaning of these words may be discerned from the provisions
of the Constitution. Given that we have already discussed what is meant by
the words ‘legislature’, ‘executive’ and ‘judiciary’ in Part I of this book, we
are only going to consider what is meant by the term ‘organ of state’ here.

9.3.2.2.2 All organs of state

Recall that section 8(1) of the Constitution states that the rights in the Bill
of Rights bind all organs of state. In so far as the term ‘organ of state’ is
concerned, section 239 of the Constitution provides that ‘organ of state’
means:
(a) any department of state or administration in the
national, provincial or local sphere of government;
or
 (b) any other functionary or institution
(i) exercising a power or performing a function in
terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation,
but does not include a court or a judicial officer.
In terms of this definition, all organs of state may be divided into three
categories:
• first, any department of state or administration in the national, provincial
or local spheres of government
• second, any functionary or institution exercising a power or performing a
function in terms of the Constitution or a provincial constitution
• third, any functionary or institution exercising a public power or
performing a public function in terms of any legislation.77
While it is usually easy to identify those bodies or institutions that fall into
the first two categories, it is not always easy to identify those bodies or
institutions that fall into the third category. This is because it is not always
clear whether a body or institution is exercising a public power or
performing a public function in terms of any legislation. Is the University of
Cape Town, for example, an organ of state? What about state-owned
companies such as Eskom, SAA or Telkom? What about state institutions
that have been privatised such as Iscor or, as it is called today, Mittalsteel
South Africa Ltd?
The manner in which a court should go about determining whether a
body or institution is exercising a public power or performing a public
function was considered by the Supreme Court of Appeal (SCA) in Calibre
Clinical Consultants (Pty) Ltd and Another v National Bargaining Council
for the Road Freight Industry and Another.78
The facts of this case were as follows. In 2007, the respondent decided to
establish an antiretroviral programme for HIV-positive employees in the
road freight industry. The respondent, however, did not want to manage and
implement the programme itself and invited interested parties to submit
written proposals for the provision of these services.
 The appellant submitted a written proposal and was then invited to
present its proposal to an interview panel. After the presentation, the
appellant was told that the respondent had decided in principle to award it
the tender, but that a due diligence review still had to be performed.
Unfortunately, the due diligence review revealed a number of problems
with the appellant’s financial status. Following a long and complicated
process, during which the appellant attempted, but failed, to address its
financial problems, the respondent rejected the appellant’s proposal and
awarded the tender to another party.
The appellant then applied to the South Gauteng High Court:
Johannesburg for an order reviewing and setting aside the respondent’s
decision not to award the tender to it. It based its application on the grounds
that the respondent’s decision infringed the right to procedural fairness
guaranteed in the Promotion of Administrative Justice Act (the PAJA).79
The High Court dismissed the application and the appellant then
appealed to the SCA which dismissed the appeal. In arriving at this
decision, the SCA began by pointing out that a decision can only be
reviewed in terms of the PAJA if it is an administrative act. A decision will
only be classified as an administrative act if, inter alia, it is made by an
organ of state as defined in section 239 of the Constitution.80
Given that the respondent was not ‘exercising a power or performing a
function in terms of the Constitution or a provincial constitution’,81 the key
question that had to be answered, therefore, was whether it was ‘exercising
a public power or performing a public function in terms of any
legislation’.82
In so far as this question was concerned, the SCA observed that while
there is no single test to determine whether a power or function is of a
public nature, the courts both in South Africa and in foreign comparable
jurisdictions have usually taken into account the extent to which the power
or function may be described as ‘governmental’ in nature. The more
governmental in nature a power or function is, therefore, the more it may be
said to be public in nature.83
The sorts of factors that courts will take into account to determine
whether a power or function is of a public nature, therefore, include the
extent to which the powers or functions are ‘woven into a system of
governmental control’, or are ‘integrated into a system of statutory
regulation’, or are ‘regulated, supervised and inspected’ by government, or
are ‘linked to the functions and powers of government’, or are ‘publicly
funded’ and so on.84
This approach, the SCA observed further, is a useful one because it asks
whether the person or body which is exercising the power or performing the
function is accountable to the public for the way in which the person or
body has exercised the power or performed the function. It is about
accountability to those with whom the functionary or body has no special
relationship other than that they are affected by its conduct. The question in
each case will be whether the person or body can properly be said to be
accountable, notwithstanding the absence of any such special
relationship.85
After setting out these principles, the SCA turned to apply them to the
facts. In this respect, the Court found that even though the Labour Relations
Act 86 regulates the establishment and powers of bargaining councils, they
are essentially voluntary associations created by agreement to perform
functions in the interests and for the benefit of their members. They are,
therefore, not accountable to the public for the procurement of services for
projects that are implemented for the benefit of their members.
Consequently, bargaining councils cannot be said to be exercising public
powers or performing public functions.87
In light of this judgment, therefore, it can be said that the exercise of a
power or the performance of a function may be classified as public if the
body or institution that has exercised the power or performed the function is
accountable to the public for the manner in which it has exercised that
power or performed that function.

9.3.2.3 The direct horizontal application of the Bill of Rights

While section 8(1) of the Constitution governs the direct vertical
application of the Bill of Rights, section 8(2) governs the direct horizontal
application of the Bill of Rights. Section 8(2) provides in this respect that
‘[a] provision in the Bill of Rights binds a natural or a juristic person if, and
to the extent that, it is applicable, taking into account the nature of the right
and the nature of any duty imposed by the right’.

PAUSE FOR REFLECTION

The Bill of Rights in the interim Constitution did

not apply directly to horizontal disputes
The fact that the Bill of Rights may be applied directly to a
horizontal dispute if the requirements of section 8(2) have
been satisfied is one of the most significant differences
between the Constitution and the interim Constitution.
Section 7 regulated the application of the Bill of Rights in
the interim Constitution, stating simply that ‘[the Bill of
Rights] shall bind all legislative and executive organs of
state at all levels of government’.
In Du Plessis the Constitutional Court held that the fact
that section 7 did not refer to ‘all law’ and ‘the judiciary’
meant that the Bill of Rights in the interim Constitution did
not apply directly to horizontal disputes. It only applied
directly to vertical disputes.88
In light of this judgment and in an attempt to ensure that
the Bill of Rights in the Constitution would apply directly to
horizontal disputes, the Constitutional Assembly made two
important changes:
• First, it added the words ‘all law’ and ‘the judiciary’ to the
application clause. Section 8(1) thus provides that ‘[t]he
Bill of Rights applies to all law and binds the legislature,
the executive, the judiciary and all organs of state’.
• Second, it added an entirely new clause imposing an
obligation to apply the Bill of Rights directly to horizontal
disputes, at least in some cases. Section 8(2) thus
provides that ‘[a] provision in the Bill of Rights binds a
natural or juristic person if, and to the extent that, it is
 applicable, taking into account the nature of the right and
the nature of any duty imposed by the right’.

Unlike section 8(1) of the Constitution, which is not subject to any

qualifications, section 8(2) is subject to an important qualification, namely
that a fundamental right only applies directly to a horizontal relation ‘if, and
to the extent that, it is applicable, taking into account the nature of the right
and the nature of the duty imposed by the right’.
Since the Bill of Rights does not apply directly to every horizontal
dispute, but only to those in which ‘it is applicable, taking into account the
nature of the right and the nature of the duty imposed by the right’, it is
important to know what these words mean. Unfortunately, it is not easy to
say exactly what they mean. This is partly because they are quite vague and
partly because the Constitutional Court has only considered section 8(2) in
two cases, namely Khumalo and Governing Body of the Juma Musjid
Primary School & Others v Essay NO and Others.89
The Constitutional Court’s judgment in Juma Musjid does, however,
provide us with some useful guidelines on the manner in which section 8(2)
should be interpreted and applied. In this case, the Court had to determine
whether the right to a basic education guaranteed in section 29(1) of the
Constitution applied directly to the common law principles governing
evictions, despite the fact that none of the parties was the state or an organ
of state.
The Constitutional Court found that it did. In arriving at this decision, the
Constitutional Court began by stating that when it comes to determining
whether a right in the Bill of Rights applies directly to a horizontal dispute
governed by the common law, a court must take into account the purpose of
section 8(2). This purpose ‘is not to obstruct private autonomy or to impose
on a private party the duties of the state in protecting the Bill of Rights. It is
rather to require private parties not to interfere with or diminish the
enjoyment of a right’.90
Apart from the purpose of section 8(2) of the Constitution, the
Constitutional Court stated further that when it comes to determining
whether a right in the Bill of Rights applies directly to a horizontal dispute
governed by the common law, a court must also take into account the
factors highlighted in Khumalo, namely ‘the intensity of the constitutional
right in question, coupled with the potential invasion of that right which
could be occasioned by persons other than the state or organs of state’.91
Given these principles, the Constitutional Court went on to state, it may
be said that the right to a basic education does apply directly to a horizontal
dispute governed by the common law, but only in the sense that it imposes a
negative obligation on private parties not to use their common law powers
to interfere with or diminish the enjoyment of that right. It does not impose
a positive obligation on private parties to take steps to provide basic
education to learners.92
In light of this judgment, the following is in summary the current state of
affairs:
• First, the courts may not interpret section 8(2) of the Constitution in a
manner that imposes positive socio-economic obligations directly on
natural or juristic persons.
• Second, the courts may interpret section 8(2) of the Constitution in a
manner that does impose at least some negative socio-economic
obligations directly on natural or juristic persons.
• Third, to determine which socio-economic negative obligations
section 8(2) of the Constitution imposes directly on natural or juristic
persons, the courts must take into account the ‘intensity of the
constitutional right in question’ and the extent to which the right could
potentially be invaded by persons other than the state or organs of the
state.93 Unfortunately, it is not entirely clear what is meant by the
‘intensity of the constitutional right in question’.94

9.3.2.4 The indirect application of the Bill of Rights

9.3.2.4.1 Introduction
In some cases the Bill of Rights will not apply directly to law and a court
will not be asked to measure the law against the specific right and then to
declare invalid the provision of the law. Instead, the Bill of Rights will
indirectly influence the way in which the court interprets the law, but they
will not declare the law unconstitutional. While sections 8(1) and 8(2) of
the Constitution govern the direct vertical and horizontal application of the
Bill of Rights, section 39(2) of the Constitution governs the indirect vertical
and horizontal application of the Bill of Rights. Section 39(2) provides that
‘[w]hen interpreting any legislation, and when developing the common law
or customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights’.
When the Bill of Rights applies indirectly, the relationship between the
Bill of Rights and the ordinary law is not governed by the principles and
rules set out in the Bill of Rights. Instead, it is governed by the principles
and rules set out in the ordinary law (legislation, common law and
customary law). The manner in which the courts interpret legislation or
develop the common law and customary law, however, must promote the
values in the Bill of Rights.
Unlike the direct application of the Bill of Rights, therefore, the indirect
application of the Bill of Rights is not based on an enquiry as to whether the
law is in direct conflict with an identifiable right. Instead, the court has to
invoke the values that underlie the Bill of Rights and ask whether it should
interpret or develop the law to bring it in line with these values.

COUNTER POINT

Has the principle of avoidance or subsidiarity

followed by the Constitutional Court undermined
the rule of law?
Section 39(2) of the Constitution does not specify when the
courts should apply the Bill of Rights indirectly in terms of
section 39(2) rather than directly in terms of section 8(1)
and (2). However, the Constitutional Court has stated on a
number of occasions that where it is possible to decide a
case without applying the Bill of Rights directly, then this is
the approach the courts should adopt.95 This approach is
referred to as the principle of avoidance or the principle
of subsidiarity.
 In practice, this approach means that when a court is
confronted with a statutory provision, it should first attempt
to interpret the provision in accordance with the values that
underlie the Bill of Rights before it tests the validity of the
provision against a specific provision of the Bill of Rights.
Similarly, when a court is confronted with a common or
customary law rule, it should first attempt to develop the
rule in accordance with the values underlying the Bill of
Rights before it tests the validity of the rule against a
specific provision of the Bill of Rights.
Woolman has criticised the fact that the Constitutional
Court favours the indirect application of the Bill of Rights
over the direct application. He argues that the problem with
this approach is that:
• it has freed the Constitutional Court almost entirely from
the text and has thus granted it the licence to decide
each case as it likes
• it has relieved the Constitutional Court of the obligation
to give content to the specific rights guaranteed in the
Bill of Rights and to engage in the nuanced process of
justification required by the limitation clause
• it has undermined the rule of law by making it difficult for
lower court judges, lawyers, government officials and
citizens to discern, with some degree of certainty, how
the basic law is going to be applied.
In other words, the indirect application of the Bill of Rights
has grown to assume such a central space in the
Constitutional Court’s approach to Bill of Rights matters
that it seems to have reduced the relevance and space for
the direct application of the Bill of Rights to a bare
minimum.96

9.3.2.4.2 The indirect application of the Bill of Rights to legislation

Section 39(2) of the Constitution governs the indirect application of the Bill
of Rights to legislation. This section provides that ‘when interpreting any
legislation … every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights’. To achieve this objective, the
courts have held that section 39(2) of the Constitution imposes an
obligation on judicial officers to examine the objects and purport of an Act
and to read the provisions of legislation, so far as possible, ‘in conformity’
with the Bill of Rights.97
The principle of reading in conformity with the Bill of Rights means
that the courts must prefer interpretations that fall within the boundaries of
the Bill of Rights over those that do not, provided that such an
interpretation can be reasonably ascribed to the section.98 The process of
interpreting legislation in conformity with the Bill of Rights, therefore, is
limited to what the texts of the provisions in question are reasonably
capable of meaning.99 The interpretation ‘must not be fanciful or far-
fetched but one that reasonably arises from the challenged text without
unwarranted strain, distortion or violence to the language’.100
The application of these principles and rules, however, is subject to
certain limits. On the one hand, it is the duty of the judicial officer to
interpret legislation in conformity with the Constitution so far as this is
reasonably possible. On the other hand, the legislature is under a duty to
pass legislation that is reasonably clear and precise, enabling citizens and
officials to understand what is expected of them.101
A balance will have to be struck, therefore, to resolve this tension. There
will be occasions when a judicial officer will find that the legislation,
although open to a meaning which would be unconstitutional, is reasonably
capable of being read ‘in conformity with the Constitution’.102 Such an
interpretation should not, however, be unduly strained.103

COUNTER POINT
Benefits and drawbacks of an expansive
approach to the principle of reading in
conformity with the Bill of Rights
In some cases the Constitutional Court has adopted an
expansive approach to the principle of reading in
conformity with the Bill of Rights and has strayed quite far
from the actual words used in a statutory provision in order
to give it a constitutional meaning.
In Bertie Van Zyl (Pty) Ltd and Another v Minister for
Safety and Security and Others,104 for example, the
applicant applied for an order declaring section 20(1)(a) of
the Private Security Industry Regulation Act105 to be
unconstitutional and invalid on the grounds that it was
overbroad or vague and therefore irrational. Section 20(1)
(a) of the Act was overbroad, the applicant argued,
because if read together with the definition of a ‘security
service’ in section 1 of the Act, it applied not only to people
who provided security services in the true sense, but to
also to countless other people, including, for example,
childminders, doctors and teachers, all of whom protect
and safeguard people in the course of their work.
Section 20(1)(a) of this Act provided in part that ‘[n]o
person, except a security service contemplated in
section 199 of the Constitution (Act No. 108 of 1996), may
in any manner render a security service for remuneration,
reward, a fee or benefit, unless such person is registered
as a security service provider in terms of this Act’ and
section 1(a) provided in part that ‘security service means
… protecting or safeguarding a person or property in any
manner’.
A majority of the Constitutional Court rejected this
argument. In arriving at this decision, however, the Court
held that the words ‘security service’ must be read down to
mean ‘the protection or safeguarding of persons or
property from unlawful physical harm, including injury,
physical damage, theft, or kidnapping caused by another
person. This must be so because the security of persons
and property is central to what the Act aims to protect …
[T]he Act is not intended to regulate the response to
hazards from nature or harm from animals’.106
To uphold the constitutional validity of section 1(a) of the
Act, therefore, the majority of the Constitutional Court
essentially rewrote it by cutting the words ‘in any manner’
from the section and adding the words ‘from unlawful
physical harm, including injury, physical damage, theft, or
kidnapping caused by another person’ to it.
As Bishop and Brickhill have pointed out, this expansive
approach has both advantages and disadvantages. On the
one hand, ‘it allows courts to avoid declaring legislation
unconstitutional and thus, in some sense at least, respect
the separation of powers. It also avoids the recurrent
difficulties and delays that often follow declarations of
invalidity until new legislation is passed’.107 On the other
hand, ‘government officials who have to apply the section
will not be able to tell from reading it what its proper
meaning is. They will have to know about (and read) the
court decision in order to do their jobs’.108
In addition, they point out further:
because High Court interpretations that avoid a finding of
unconstitutionality need not be confirmed by the Constitutional
Court, they will occasion much greater uncertainty than
declarations of invalidity. It is also possible that different High
Courts may reach different interpretations, none of which could be
ascertained merely by reading the section.109

Finally, they conclude:

the supposed separation of powers benefits that accrued through
interpretation are largely illusory, as the degree of interference in
the legislature’s sphere of operation occasioned by interpretations
that exceed the ordinary meaning of the words is the same as an
 order of invalidity accompanied by orders of reading in or
severance. The Constitutional Court has developed a detailed
jurisprudence about how to accommodate separation of powers
concerns when making those orders, a jurisprudence that seems to
be largely ignored in the current approach to interpretation. This
massive power in effect permits courts – and not only the
Constitutional Court – to legislate about what the legislation is
meant to achieve.110

Apart from the points set out above, the courts have also held that it is
important to distinguish between interpreting legislation in a manner that
promotes the spirit, purport and objects of the Bill of Rights, sometimes
called reading down, and the process of reading words into or severing
them from a statutory provision under section 172(1)(b) of the Constitution
following on a declaration of constitutional invalidity under section 172(1)
(a) of the Constitution.111
The first process is an interpretative one and is limited to what the text is
reasonably capable of meaning. The second process is a remedial one and
can only take place after the statutory provision in question has been found
to be constitutionally invalid.112 It follows that where a legislative
provision is reasonably capable of a meaning that places it within
constitutional bounds, it should be preserved. Only if this is not possible
should courts resort to the remedy of reading in or notional severance.113

9.3.2.4.3 The indirect application of the Bill of Rights to the common law and
customary law
Section 39(2) of the Constitution also governs the indirect application of the
Bill of Rights to the common law and customary law. This section provides
that ‘… when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights’.
The Constitutional Court has considered the circumstances in which the
courts must develop the common law on a number of occasions.114 In
these cases, the Court has held that while the courts are under a general
obligation to develop the common law, they do not have to carry out this
exercise in each and every case that comes before them.
In Carmichele v Minister of Safety and Security, for example, the
Constitutional Court held that:
the obligation of courts to develop the common law, in
the context of section 39(2) objectives, is not purely
discretionary. On the contrary, it is implicit in
section 39(2) read with section 173 that where the
common law as it stands is deficient in promoting the
section 39(2) objectives, the courts are under a general
obligation to develop it appropriately.115
This general obligation, the Constitutional Court held further, does not
mean:
that a court must, in each and every case where the
common law is involved, embark on an independent
exercise as to whether the common law is in need of
development and, if so, how it is to be developed under
section 39(2). At the same time there might be
circumstances where a court is obliged to raise the
matter on its own and require full argument from the
parties.116
The obligation imposed on the courts to develop the common law,
therefore, is an extensive one. It requires the courts to be alert to the
normative framework of the Constitution not only when some startling new
development of the common law is in issue, but in all cases where the
incremental development of the rule is in issue.117

PAUSE FOR REFLECTION

Differing interpretations of section 39(2)

There has been considerable academic debate about the
nature of the horizontal application of the Bill of Rights and
whether the courts are obliged to develop the common law
in each case or not.118 Fagan argues that contrary to
decisions of the Constitutional Court in Carmichele, the
Constitution does not regard the spirit, purport and objects
of the Bill of Rights as providing an independent reason for
developing the common law. According to Fagan, the
phrase, ‘spirit, purport and objects of the Bill of Rights’, as
contained in section 39(2) of the Constitution, constitutes a
set of reasons for choosing between different ways of
developing the common law. However, this choice can only
be made after adopting a prior decision based on an
independent reason for developing the common law.
There is a distinction to be drawn between a justification
provided by a constitutionally entrenched right and one
provided by the objects of the Bill of Rights. The wording of
section 39(2) does not imply an obligation to develop the
common law. If there is an obligation to develop the
common law, it must be found in independent reasons; that
is, reasons other than those sourced in the objects of the
Bill of Rights.
Davis took issue with this line of reasoning, arguing that
the interpretation was too formalistic, that it ‘ignores the
intricacies of adjudication and its relationship to justice’ and
continues:
On this line of argument, the demands of a post-constitutional
jurisprudence require a re-examination of legal thinking, a deep
reflection on the consequences of the past in order that we do not
reproduce its shibboleths, but rather its reflective power, in order in
turn to meet the conception of justice which is set out in the
Constitution, in the form of a normative framework for a future
South Africa. In other words, the Constitution, read as a whole,
provides a concept of justice which, if implemented, would result in
the attainment of a journey from apartheid to the democratic
society envisaged in the Constitution. Admittedly, this is a difficult
 task and not one that is met easily by way of a grand narrative
which can be grasped immediately.119

In essence, Davis argues that in order for the Constitution

to play its role in transforming the private law, section 39(2)
requires the courts to develop the common law in each
case to bring it in line with the spirit, purport and objects of
the Bill of Rights. An argument that limits the ability of the
courts to do so is therefore essentially in opposition to the
transformation of the private law in accordance with the
precepts of justice.

Apart from the circumstances in which the courts are obliged to develop the
common law, the Constitutional Court has also dealt with the manner in
which the courts must carry out this exercise. In Thebus and Another v S,
for example, the Constitutional Court explained that the Constitution
embodies an ‘objective normative value system’.120 It is within the matrix
of this objective normative value system that the common law must be
developed. This means, the Court explained further, that ‘under
section 39(2) of the Constitution, concepts which are reflective of, or
premised upon, a given value system might well have to be replaced, or
supplemented and enriched by the appropriate norms of the objective value
system embodied in the Constitution’.121
After making these points, the Constitutional Court went on to explain
that the need to develop the common law under section 39(2) of the
Constitution could arise in two circumstances:
The first would be when a rule of the common law is
inconsistent with a constitutional provision. Repugnancy
of this kind would compel an adaptation of the common
law to resolve the inconsistency. The second possibility
arises even when a rule of the common law is not
inconsistent with a specific constitutional provision but
may fall short of its spirit, purport and objects. Then, the
common law must be adapted so that it grows in
 harmony with the ‘objective normative value system’
found in the Constitution.122
In those cases in which a common law rule is alleged to be inconsistent
with a constitutional provision, a court is obliged to carry out a two-stage
enquiry. First, it must determine whether or not the common law rule does
in fact limit an entrenched right. If it does, the court must move onto the
second stage and determine whether the limitation is reasonable and
justifiable. If the limitation is not reasonable and justifiable, the court itself
is obliged to adapt or develop the common law rule in order to harmonise it
with the constitutional norm.123
In those cases in which a common law rule falls short of the spirit,
purport and objects of the Bill of Rights, a court is also obliged to undertake
a two-stage enquiry. First, it must ask itself whether, given the objectives of
section 39(2) of the Constitution, the common law should be developed
beyond existing precedent. If the answer to this question is a negative one,
then this should be the end of the enquiry. If not, the next enquiry should be
how the development should occur and which court should embark on this
exercise.124
In K v Minister of Safety and Security,125 the Constitutional Court also
set out some of the ways in which the common law can be developed. In
this respect, the Court stated that the common law can be developed by, for
example, introducing a new rule or significantly changing an existing one.
It can also be developed by extending the ambit of a rule to include a new
set of facts or limiting the ambit to exclude those facts.126

PAUSE FOR REFLECTION

The development of customary law

The indirect application of the Bill of Rights, which leads to
the development of the law, is often thought of only in
terms of the development of the common law. However, as
section 39 clearly states, it is not only the common law that
 must be developed but also the customary law. In
Mayelane v Ngwenyama and Another, the Constitutional
Court summarised its approach to the development of
customary law as follows:
This Court has, in a number of decisions, explained what this
resurrection of customary law to its rightful place as one of the
primary sources of law under the Constitution means. This
includes that:
a) customary law must be understood in its own terms, and not
through the lens of the common law;
b) so understood, customary law is nevertheless subject to the
Constitution and has to be interpreted in the light of its values;
c) customary law is a system of law that is practised in the
community, has its own values and norms, is practised from
generation to generation and evolves and develops to meet
the changing needs of the community;
d) customary law is not a fixed body of formally classified and
easily ascertainable rules. By its very nature it evolves as the
people who live by its norms change their patterns of life;
e) customary law will continue to evolve within the context of its
values and norms consistently with the Constitution;
f) the inherent flexibility of customary law provides room for
consensus-seeking and the prevention and resolution, in
family and clan meetings, of disputes and disagreements; and
g) these aspects provide a setting which contributes to the unity
of family structures and the fostering of co-operation, a sense
of responsibility and belonging in its members, as well as the
nurturing of healthy communitarian traditions like ubuntu.127

SUMMARY

This chapter deals with some of the technical questions relating to Bill of
Rights adjudication. The application of the Bill of Rights gives rise to a
number of difficult questions. The two most important, however, are who is
entitled to claim the right in question and who is bound by the right in
question?
The rights guaranteed in the Bill of Rights may be claimed by both
natural and, in certain circumstances, juristic persons. In so far as natural
persons are concerned, the majority of rights state that they can be claimed
by ‘everyone’. The use of the word ‘everyone’ refers to South African
citizens as well as any other person who is physically present in the country,
irrespective of whether they are here legally or illegally.
Although the majority of rights state that they can be claimed by
‘everyone’, certain rights state that they may be claimed only by a narrower
category of natural persons, for example citizens, children or detained
persons. These rights may be claimed only by those natural persons who
fall into the definition of the relevant category.
In so far as juristic persons are concerned, section 8(4) of the
Constitution provides that ‘[a] juristic person is entitled to the rights in the
Bill of Rights to the extent required by the nature of the rights and the
nature of the juristic person’. To determine whether a juristic person can
claim a particular right, therefore, two factors must be taken into account:
whether the juristic person is capable of exercising the right in question and
whether the juristic person is entitled to exercise the right in question.
Once a court has determined who can claim rights in terms of the Bill of
Rights, it has to ask a second question, namely, against whom can these
rights be claimed? In other words, the court has to ask who is bound to
respect the rights claimed by either a natural or juristic person. Although
‘everyone’ is entitled to claim the benefit of the rights (or at least most of
the rights) in the Bill of Rights, not everyone is bound by every right
contained in the Bill of Rights. This is because while the Bill of Rights is
always binding on the state, it is not always binding on private persons.
When it comes to the question of who is bound by the Bill of Rights, it is
important to distinguish between the direct application of the Bill of Rights
and the indirect application of the Bill of Rights as well as between the
vertical and horizontal application of the Bill of Rights. This is because in
South Africa the Bill of Rights applies not only directly and indirectly, but
also vertically and sometimes horizontally. Section 8(1) of the Constitution
governs the direct vertical application of the Bill of Rights while
section 8(2) governs the direct horizontal application. Section 39(2) of the
Constitution governs the indirect vertical and horizontal application of the
Bill of Rights.
1 Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 24.
2 Currie and De Waal (2013) 24.
3 Currie and De Waal (2013) 26.
4 Currie and De Waal (2013) 26–7.
5 Freedman, DW ‘Constitutional law: Bill of Rights’ in Joubert, WA (ed) (2012) Law of South
Africa 2nd ed Vol 5 Part 4 para 2.
6 United Nations (1996) International Covenant on Civil and Political Rights available at
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
7 United Nations (1996) International Covenant on Economic, Social and Cultural Rights
available at http://www.ohchr.org/en/professionalinterest/pages/CESCR.aspx.
8 Dlamini, CRM (1995) Human Rights in Africa: Which way South Africa? 5–6.
9 Dlamini (1995) 5–6.
10 Du Plessis, LM (1999) An Introduction to Law 3rd ed 168–9.
11 Du Plessis (1999) 168–9.
12 Du Plessis (1999) 168–9.
13 See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) paras 77–8
where the Court held that socio-economic rights are no less justiciable than civil and political
right, nor would a court adjudicating on them necessarily lead to a breach of the separation of
powers.
14 See Currie and De Waal (2013) 24 and 29.
15 See Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 321.
16 Currie and De Waal (2001) 321.
17 Currie and De Waal (2001) 321.
18 Ss 19, 20 and 22 of the Constitution.
19 S 28 of the Constitution.
20 S 35 of the Constitution.
21 In law, a natural person is a real human being as opposed to a legal person which may be a
private business entity or public (government) organisation.
22 A juristic person is an artificial entity through which the law allows a group of natural persons
to act as if it were a single composite individual for certain purposes. This legal fiction does
not mean these entities are human beings, but rather that the law recognises them and allows
them to act as natural persons for some purposes, most commonly in lawsuits, property
ownership and contracts. For example, a company or a club will act as a juristic person.
23 Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v
Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505
(CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 47.
24 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 37.
25 Lawyers for Human Rights and Other v Minister of Home Affairs and Other (CCT 18/03)
[2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) para 27.
26 Christian Lawyers Association of SA v Minister of Health 1998 (11) BCLR 1434 (T) 1441.
27 Christian Lawyers Association 1441.
28 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
29 South African National Defence Union para 23.
30 South African National Defence Union para 26.
31 Govindjee, A and Vrancken, P (eds) (2009) Introduction to Human Rights Law 41.
32 Govindjee and Vrancken (2009) 41.
33 Govindjee and Vrancken (2009) 41.
34 Govindjee and Vrancken (2009) 41.
35 Govindjee and Vrancken (2009) 41.
36 See Rucker, P (2011, 11 August) Mitt Romney says ‘corporations are people’ at Iowa State Fair
Washington Post available at http://articles.washingtonpost.com/2011-08-
11/politics/35270239_1_romney-supporters-mitt-romney-private-sector-experience.
37 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996).
38 First Certification paras 57–8.
39 See, for example, Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December
1995); Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v
Minister of Home Affairs and Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003
(5) SA 281 (CC) (27 June 2003); Kruger v President of the Republic of South Africa and
Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC)
(2 October 2008); Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd and Another (CCT 34/10) [2010] ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR
207 (CC) (23 November 2010); Tulip Diamonds FZE v Minister for Justice and Constitutional
Development and Others (CCT 93/12) [2013] ZACC 19; 2013 (10) BCLR 1180 (CC); 2013 (2)
SACR 443 (CC) (13 June 2013).
40 Kruger para 21.
41 Kruger para 90.
42 See Currie and De Waal (2013) 77.
43 Currie and De Waal (2013) 77.
44 (CCT 25/12) [2012] ZACC 28; 2013 (3) BCLR 251 (CC) (29 November 2012) para 23.
45 Giant Concerts para 32.
46 Giant Concerts para 33.
47 Giant Concerts para 34.
48 Giant Concerts para 35.
49 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995).
50 (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003 (5) SA 281 (CC) (27 June 2003).
51 (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October
2008).
52 Giant Concerts para 41.
53 Ferreira; Vryenhoek para 234.
54 Ferreira; Vryenhoek para 234.
55 (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March
2004).
56 Lawyers for Human Rights para 17.
57 Lawyers for Human Rights para 18. In his minority judgment in Lawyers for Human Rights,
Madala J held that another important factor to be taken into account when determining whether
a party has standing to act in the public interest is ‘the egregiousness of the conduct
complained of’ (para 73).
58 Currie and De Waal (2001) 321.
59 Currie and De Waal (2001) 321.
60 Currie and De Waal (2013) 41.
61 Currie and De Waal (2013) 41.
62 Hutchinson, AC (1990) Mice under a chair: Democracy, courts and the administrative state
University of Toronto Law Journal 40(3):374–404 at 380.
63 S 8(2).
64 Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8)
BCLR 771 (14 June 2002) para 31. S 8(2) of the Constitution stipulates that ‘[a] provision in
the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable,
taking into account the nature of the right and the nature of the duty imposed by the right’.
S 8(3) goes on to stipulate that ‘[w]hen applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court: (a) in order to give effect to a right in the
Bill, must apply, or if necessary develop, the common law to the extent that legislation does not
give effect to that right; and (b) may develop rules of the common law to limit the right,
provided the limitation is in accordance with section 36(1)’.
65 Khumalo para 31.
66 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002).
67 Khumalo paras 30–4.
68 Khumalo para 31.
69 Khumalo para 31.
70 Khumalo para 32.
71 Khumalo para 33.
72 See Woolman, S ‘Application’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law
of South Africa 2nd ed rev service 5 31.6.
73 Woolman (2013) 31.7.
74 (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996).
75 Woolman (2013) 31.8.
76 Woolman (2013) 31.8.
77 Freedman (2012) para 7.
78 (410/09) [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) (19 July
2010).
79 Act 3 of 2000.
80 Calibre Clinical Consultants para 20.
81 S 239(b)(i) of the Constitution.
82 S 239(b)(ii) of the Constitution; Calibre Clinical Consultants para 19.
83 Calibre Clinical Consultants para 24.
84 Calibre Clinical Consultants para 38.
85 Calibre Clinical Consultants para 40.
86 Act 66 of 1995.
87 Calibre Clinical Consultants para 41.
88 Du Plessis para 129. Although the Bill of Rights in the interim Constitution did not apply
directly to horizontal disputes, it did apply indirectly. S 35(3) of the interim Constitution thus
provided that ‘[i]n the interpretation of any law and the application and development of the
common law and customary law, a court shall have due regard to the spirit, purport and objects
of [the Bill of Rights]’. The approach adopted by the Constitutional Court in Du Plessis
resulted in much academic debate and criticism. See, for example, Woolman, S and Davis, D
(1996) The last laugh: Du Plessis v De Klerk, classical liberalism, Creole liberalism and the
application of fundamental rights under the interim and final Constitutions South African
 Journal on Human Rights 12(2):361–404 at 361 and Sprigman, C and Osborne, M (1999) Du
Plessis is not dead: South Africa’s 1996 Constitution and the application of the Bill of Rights to
private disputes South African Journal on Human Rights 15(1):25–51 at 25.
89 (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011).
90 Juma Musjid para 58.
91 Juma Musjid para 58. See also Khumalo para 33.
92 Juma Musjid para 60.
93 Juma Musjid para 58.
94 Freedman (2012) para 9.
95 S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793
(CC) (8 June 1995) para 59; Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995]
ZACC 9; 1995 (10) BCLR 1424; 1995 (4) SA 615 (22 September 1995) paras 2–5; Ferreira;
Vryenhoek para 199; S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997
(2) SA 887 (18 November 1996) paras 12–13; National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1)
SA 6; 1998 (12) BCLR 1517 (9 October 1998) para 21.
96 See Woolman, S (2007) The amazing vanishing Bill of Rights South African Law Journal
124(4):762–94 at 762.
97 See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545
(CC) (25 August 2000) para 22.
98 Hyundai para 23.
99 See South African Police Service v Police and Prisons Civil Rights Union and Another (CCT
89/10) [2011] ZACC 21; [2011] 9 BLLR 831 (CC); 2011 (9) BCLR 992 (CC); 2011 (6) SA 1
(CC); (2011) 32 ILJ 1603 (CC) (9 June 2011) para 29.
100 Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004
(7) BCLR 735 (CC) (11 March 2004) para 83.
101 Daniels para 24.
102 Hyundai para 22.
103 Daniels para 24.
104 (CCT 77/08) [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10) BCLR 978 (CC) (7 May
2009).
105 Act 56 of 2001.
106 Bertie Van Zyl para 40.
107 Bishop, M and Brickhill, J (2010) ‘Constitutional Law’ Juta’s Annual Survey of South African
Law 224.
108 Bishop and Brickhill (2010) para 224.
109 Bishop and Brickhill (2010) para 224.
110 Bishop and Brickhill (2010) para 225.
111 Bishop and Brickhill (2010) para 225.
112 Bishop and Brickhill (2010) para 225.
113 Bishop and Brickhill (2010) para 225.
114 See, for example, Du Plessis; Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98)
[1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207 (27 August 1998).
115 (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) (16 August
2001) para 39.
116 Carmichele para 39.
117 See K v Minister of Safety and Security (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC);
2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC) (13 June 2005) para 17.
118 For an interesting and lively debate on this topic, see Fagan, A (2010) The secondary role of
the spirit, purport and objects of the Bill of Rights in the common law’s development South
African Law Journal 127(3):611–27; Davis, DM (2012) How many positivist legal
philosophers can be made to dance on the head of a pin? A reply to Professor Fagan South
African Law Journal 129(1):59–72; Fagan, A (2012) A straw man, three red herrings, and a
closet rule-worshipper: A rejoinder to Davis JP South African Law Journal 129(3):788–98;
Davis, DM (2013) The importance of reading: A rebuttal to the jurisprudence of Anton Fagan
South African Law Journal 130(1):52–9.
119 Davis (2012) 67–8.
120 (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (28 August
2003) para 27.
121 Thebus para 27.
122 Thebus para 28.
123 Thebus para 32.
124 Thebus para 26.
125 (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005] 8
BLLR 749 (CC) (13 June 2005).
126 K para 16.
127 (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May
2013) para 24. See also Gumede (born Shange) v President of the Republic of South Africa and
Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC)
(8 December 2008) para 22; Alexkor Ltd and Another v Richtersveld Community and Others
(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003); Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004]
ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 41; First
Certification para 197.
The limitation of rights

10.1 Introduction
10.2 The evolution of the limitation clause
10.3 The two-stage approach to the limitation of rights
10.4 The threshold enquiry: does the measure limit a protected
right?
10.4.1 The content and scope of the relevant protected right
10.4.2 Is the right infringed by the measure?
10.5 The justification stage: is the limiting measure in terms of
a law of general application and reasonable and justifiable?
10.5.1 Law of general application
10.5.2 Reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom
10.5.2.1 Reconsidering the role of proportionality in the
justification enquiry
10.5.2.2 Section 36 in practice
10.5.2.2.1 The purpose of the limiting measure
10.5.2.2.2 The rational connection requirement
10.5.2.2.3 Less restrictive, alternative means of achieving the
end
10.5.2.2.4 Balancing and proportionality proper
Summary
10.1 Introduction
Rights are not absolute and can, in certain circumstances, be limited.
Section 36 of the Bill of Rights contains a limitation clause that allows for
the constitutionally valid limitation of rights in certain instances. Once a
court has established that a law infringes on one or more of the rights
guaranteed in the Bill of Rights, the court must ask whether this
infringement, also called a limitation, is justifiable. This means that
somebody who claims that a legal provision has limited his or her rights
will not automatically win the case simply because his or her rights have
been limited. The person will only win if the court finds that the limitation
is not justifiable in terms of the limitation clause set out in section 36 of the
Bill of Rights.
Determining whether a limitation of rights is justified or not is difficult
and rightly so. It is difficult on a number of levels. First, South Africa is a
country emerging from a historical period during which individuals’
fundamental rights and freedoms were systematically and routinely
violated, first under colonialism and then apartheid, often under the colour
of law. South Africa has now committed itself to a system of constitutional
democracy.1 This new political dispensation requires all arms of
government 2 and, in certain circumstances, private actors,3 to respect and
protect the basic, fundamental rights contained in our Bill of Rights. In this
constitutional order, any limitation of these basic rights will understandably
and necessarily be a difficult and, at times, painful exercise.
Second, the commitment to a rights-based constitutional order means
that society’s political, social, economic and historical controversies are
often resolved using the language and the logic of rights. At times, this
requires courts to address these pressing and complex issues, some of which
invoke age-old questions that go to the heart of how society and
government should be structured and should function, using contested
empirical bases. This sometimes places courts in a difficult position in
relation to the other arms of government, namely the legislature and the
executive, as well as the public at large. The commitment to individual
rights means that courts may also have to make decisions that go against
public opinion.4 This, in essence, is the cost of ‘taking rights seriously’.5
 Apart from the difficulties identified above, there is another sense in
which the limitation of rights is a difficult exercise. It is often difficult for
people to understand the approach adopted by the Constitutional Court (and
to a far lesser extent the Constitution’s drafters) towards the limitation of
rights. The inaccessibility of the limitation clause is problematic in a
number of respects. First and foremost, it makes it difficult for other
branches of government to bring their conduct into line with what the Bill
of Rights expects and demands. As the Court itself noted in S v Mhlungu
and Others, constitutional interpretation should take the form of ‘a
principled judicial dialogue, in the first place between members of this
Court, then between our Court and other courts, the legal profession, law
schools, Parliament, and, indirectly, with the public at large’.6 The problem
with the Court’s current approach to rights limitation is that aspects of its
approach are often lost in translation.7 Second, in its current form, the
limitation clause, as well as the Court’s jurisprudence in respect of the
clause, is difficult for students to understand.
Although some level of complexity is inevitable, this chapter tries to
simplify the process of limiting rights under the Constitution. To do so, we
begin by discussing the shift from the structured, sequential limitation
enquiry required by section 33 of the interim Constitution to a unified,
balancing limitation enquiry required by section 36 of the Constitution.8
Next, we consider the two stages of the limitation analysis: the threshold
stage and the justification stage. At the threshold stage, we draw attention to
the different approaches taken by the Constitutional Court. The justification
stage is further divided into its two sub-components, namely the law of
general application requirement and the reasonable and justifiable
requirement. Crucial to understanding the latter is a reconsideration of the
notion of proportionality that has come to dominate the understanding and
misunderstanding of how section 36 works. In the final part of the chapter
we discuss the limitation of rights outside section 36(1).

10.2 The evolution of the limitation clause

It is now trite to say – as we indicated right at the outset in this chapter –
that rights are not absolute.9 Rather, they can be limited by the rights of
others as well as competing social interests. In providing for the limitation
of rights, the drafters of the interim Constitution were faced with three
options. The first was merely to set out the various protected rights without
any formal limitation device. This is the approach adopted in the United
States Constitution, ‘as a result of which courts in that country have been
obliged to find limits to constitutional rights through a narrow interpretation
of the rights themselves’.10 The second was to include rights-specific
limitation clauses such as those found in regional and international human
rights instruments like the European Convention for the Protection of
Human Rights and Fundamental Freedoms (1950).11 The third was to
include a general limitation clause applicable to all the rights protected
under the Constitution, such as that found in Canada’s Charter of Rights and
Freedoms.12
Under both the interim and final Constitution the drafters opted for a
general limitation clause. Section 33(1) of the interim Constitution
delineated a staged process for the limitation of rights. This allowed for the
rights entrenched in Chapter 3 to be limited by a law of general application,
‘provided that such limitation (a) shall be permissible only to the extent that
it is (i) reasonable; (ii) justifiable in an open and democratic society based
on freedom and equality; and (b) shall not negate the essential content of
the right in question …’ 13 Further, it provided that the limitation of certain
entrenched rights 14 must also be necessary.15
The drafters of section 33 of the interim Constitution were clearly
influenced by the limitation clause contained in the Canadian Charter of
Rights and Freedoms and, to a lesser extent, the German limitation clause
which is similarly structured.16 Given this, it was widely expected that
when it came to interpreting section 33, the Constitutional Court would
follow the approach adopted by the Canadian Supreme Court in R v
Oakes.17 In this case, Dickson CJC stated that there are three important
components to the proportionality test:
 First, the measures adopted must be carefully designed
to achieve the objective in question. They must not be
arbitrary, unfair or based on irrational considerations.
In short, they must be rationally connected to the
objective. Secondly, the means, even if rationally
connected to the objective in the first sense, should
impair ‘as little as possible’ the right or freedom in
question. … Thirdly, there must be a proportionality
between the effects of the measures which are
responsible for limiting the Charter right or freedom,
and the objective which has been identified as of
‘sufficient importance’.18
Instead of following the structured and sequential test adopted by the
Canadian Courts in Oakes, however, the Constitutional Court in S v
Makwanyane and Another opted to adopt a singular global approach in
which it considers a list of factors together in a kind of balancing test.19
This approached conflated the two requirements of reasonableness and
necessity, omitted justifiability and introduced the notion of
proportionality ‘which calls for the balancing of different interests’.20 In
his judgment, Chaskalson P thus stated the following:
The limitation of constitutional rights for a purpose that
is reasonable and necessary in a democratic society
involves the weighing up of competing values, and
ultimately an assessment based on proportionality. This
is implicit in the provisions of s 33(1). The fact that
different rights have different implications for
democracy and, in the case of our Constitution, for ‘an
open and democratic society based on freedom and
equality’, means that there is no absolute standard which
can be laid down for determining reasonableness and
necessity. Principles can be established, but the
application of those principles to particular
circumstances can only be done on a case-by-case basis.
 This is inherent in the requirement of proportionality,
which calls for the balancing of different interests.21

CRITICAL THINKING

Is the limitation of rights an assessment based

on proportionality?
We could question the finding that it is implicit in the
language of section 33(1) of the interim Constitution that
the limitation of rights is ‘ultimately an assessment based
on proportionality’.22 The language of section 33(1), which
spoke of justifiability, implied that the enquiry will at times
involve the weighing up of competing values (balancing)
and their proportionality. This might be the ultimate leg of
the staged process should it get to that point. However,
to reduce section 33 and the process of limiting of rights
generally to only being about proportionality is difficult to
reconcile with the text of section 33(1). What is more, it is
confusing as it makes the whole endeavour about a
metaphorical formulation of proportionality and
balancing.23 However, it is difficult to know exactly what
must be balanced against what else and whether the
various interests at play in any limitation clause enquiry
can indeed be balanced against each other at all.

Regardless of the merits of the Court’s approach in Makwanyane, it clearly

had an effect on the drafters of section 36(1) of the final Constitution which
states:
The rights in the Bill of Rights may be limited only in
terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and
 freedom, taking into account all relevant factors,
including–
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose;
and
(e) less restrictive means to achieve the purpose.
The most notable difference between the limitation clauses of the interim
and final Constitutions is that the drafters of the final Constitution elected to
abandon the sequential, structured approach in which a series of specific
questions were addressed.24 Instead, they favoured Makwanyane’s singular,
global approach in which certain factors are considered. However, the
drafters did not go so far as to adopt the language of balancing and
proportionality. They chose rather the phrase ‘reasonable and justifiable’.25
This left open the possibility that some of the structure of the interim
Constitution might survive, but that window was quickly closed by the
Court. The Constitution also included the factors listed by Makwanyane as
relevant to balancing 26 and added another one: less restrictive means.27

PAUSE FOR REFLECTION

The absence of reasons for the the

Constitutional Court’s adjudicative approach to
rights limitation
The reasons for the Constitutional Court’s deliberate move
away from a structured, criteria-based approach to the
limitation of rights – such as that found in the interim
Constitution and Oakes – towards a global, unstructured
test that turns almost entirely on the problematic metaphor
of balancing are not easily identified. One possible
explanation is that it is a reaction (or perhaps an
overreaction) to the formalistic, positivist legal culture that
was pervasive under apartheid. As Lenta notes:
It is widely recognised that the radical divorce decreed by
modernity under the guise of legal positivism, between law and
ethics, legality and morality, justice as process and justice as
substance was in large measure responsible for the complicity of
the legal system with the apartheid regime. Positivism has
accordingly and rightly been rejected by the judiciary and many in
the legal academy.28

However, this may be too simplistic an explanation that, in

any event, is difficult to reconcile with the Court’s decision
to resort to formalism at other times in its jurisprudence.29
As Roux notes, ‘none of the mainstream theories of
adjudication adequately explains the [Constitutional
Court’s] record’.30
In the absence of a theory that explains the Court’s
adjudicative approach generally, let alone rights limitation
in particular, Roux submits that the Court’s decision-making
process can best be understood as a form of ‘tactical
adjudication’.31 Leaning on political sciences approaches
to the understanding of law and courts, he argues that the
Court is ‘a political actor pursuing a determinate strategic
objective: the establishment of constitutional
democracy’.32 The pursuit of that objective requires that
the Court use the available legal materials – including
section 36 – ‘to give meaningful effect to the Constitution
whilst building its institutional legitimacy, either directly or
indirectly, by creating doctrinal space for itself in later
judgments to hand down context-sensitive judgments’.33
This ‘mix of principle and pragmatism’, Roux argues
elsewhere, ‘seems likely to provide the best way for a
constitutional court in a new democracy to build its legal
legitimacy without sacrificing its institutional security’.34
 Of the five ‘adjudicative devices’ Roux identifies as being
employed by the Court to create this ‘doctrinal space’, one
has particular relevance to section 36.35 This adjudicative
device is the conversion of conceptual distinctions into
‘multi-factor balancing tests’ or ‘discretionary standards’.36
Referring to the case of First National Bank of SA Limited
t/a Wesbank v Commissioner for the South African
Revenue Services and Another; First National Bank of SA
Limited t/a Wesbank v Minister of Finance,37 Roux argues:
In a decision that says much about its general approach to
constitutional adjudication, the [Court] … cut through all of
[section 25’s] conceptual distinctions and reduced the
constitutional property clause inquiry to a single, multi-factor
balancing test.38

According to the Court, this test requires consideration of ‘a

complexity of relationships’ that must be scrutinised under
a review standard that will vary between rationality and
proportionality depending ‘on all the relevant facts of
each particular case’.39 Rather than being ‘unconscious or
whimsical’, Roux argues persuasively that these
adjudicative approaches are part of a deliberate strategy
on the part of the CCSA to make its leading doctrines more
context-sensitive.40
Although Roux does not cite the Court’s approach to
section 36 as evidence of tactical adjudication, there are a
number of reasons to include it as a good, if not better,
example than those he does include. While employing
adjudicative devices that create the necessary doctrinal
space in specific cases might be useful in future cases of a
similar nature, doing so in respect of the limitation clause
would create such space systemically. Further, if the Court
is employing such devices in order to manage its
relationship with the executive and legislature, and to
 protect its institutional security, then there is no better place
to do so than section 36: the lynchpin of that relationship.

10.3 The two-stage approach to the

limitation of rights
Since the Constitutional Court’s very first case under the interim
Constitution, the Court has advocated a ‘two-stage approach’ to the
limitation of rights.41 Since the adoption of the final Constitution, the Court
has for the most part followed this two-stage approach. In terms of this
approach: ‘The first question to be asked is whether the provision in
question infringes the rights protected by the substantive clauses of the Bill
of Rights. If it does, the next question that arises will be whether that
infringement is justifiable’.42
In Ex Parte Minister of Safety and Security and Others: In Re S v
Walters and Another, the Constitutional Court set out this two-stage
approach in more detail, noting:
First, there is the threshold enquiry aimed at
determining whether or not the enactment in question
constitutes a limitation on one or other guaranteed right.
This entails examining (a) the content and scope of the
relevant protected right(s) and (b) the meaning and
effect of the impugned enactment to see whether there is
any limitation of (a) by (b). Subsections (1) and (2) of s 39
of the Constitution give guidance as to the interpretation
of both the rights and the enactment, essentially
requiring them to be interpreted so as to promote the
value system of an open and democratic society based on
human dignity, equality and freedom. If upon such
analysis no limitation is found, that is the end of the
matter. The constitutional challenge is dismissed there
and then. If there is indeed a limitation, however, the
second stage ensues. This is ordinarily called the
 limitations exercise. In essence this requires a weighing-
up of the nature and importance of the right(s) that are
limited together with the extent of the limitation as
against the importance and purpose of the limiting
enactment. Section 36(1) of the Constitution spells out
these factors that have to be put into the scales in making
a proportional evaluation of all the counterpoised rights
and interests involved.43
The two-stage approach therefore requires a court first to focus on the
substantive rights, for example the right to equality, the right to vote or the
right of detained persons, to determine whether the right was infringed or
limited. It then secondly requires the court to ask whether the infringement
or limitation is justifiable in terms of section 36.

COUNTER POINT

Exceptions to the two-stage enquiry

We contend that the Court has at times strayed (explicitly
and implicitly) from the two-stage approach. In Christian
Education South Africa v Minister of Education,44 the
Court went straight into the justification of the infringement
of the rights implicated by the measure without considering
whether they were, in fact, infringed. The Court merely
assumed – without ever deciding – that the relevant rights
might have been infringed. More disturbingly, the Court has
on one occasion failed to consider the second stage of the
limitation enquiry at all.45 We assume that these cases are
exceptions and that they do not suggest a new departure
for the Court. We therefore assume that the Court is
required in each case to follow the two-stage approach to
limitation analysis.
10.4 The threshold enquiry: does the
measure limit a protected right?
We deal with the threshold enquiry as it relates to each of the rights in more
detail in the chapters that follow. However, to understand the two-stage
approach, it is important to make some preliminary remarks about the
threshold enquiry. The Constitutional Court noted in Walters that the
threshold enquiry ‘entails examining (a) the content and scope of the
relevant protected right(s) and (b) the meaning and effect of the impugned
enactment to see whether there is any limitation of (a) by (b)’.46
Two differing approaches have emerged to the threshold enquiry in the
jurisprudence of the Constitutional Court. The first is to give a
comprehensive consideration to the scope and content of the right in
question before considering whether (and later on to what extent) the
limiting measure infringes on the content of the right as set out. The
alternative approach is to accept notionally 47 or even hypothetically 48
that a right has been limited and then to proceed to the second phase of the
limitation analysis without much analytical rigour. Unfortunately, the
Constitutional Court has vacillated between these two approaches to the
threshold enquiry of the limitation clause.

PAUSE FOR REFLECTION

Advantages of a substantive, value-based

approach to the threshold enquiry
While there is nothing wrong in principle with adopting a
notional approach to the threshold enquiry, there are some
factors that weigh in favour of adopting a more substantive,
value-based approach. As Woolman and Botha explain,
among these are the following:
First, it is consistent with the text’s admonition that the provisions
of the Bill of Rights be interpreted in light of the values which
underlie an open and democratic society based on human dignity,
equality and freedom. The Final Constitution was not meant to
 protect certain forms of behaviour and a value-based approach
permits us to screen out those forms of behaviour which do not
merit constitutional protection.

Secondly, high value-based barriers for the first stage of analysis

mean that only genuine and serious violations of a constitutional
right make it through to FC s 36. If only serious infringements make
it through, then the court can take a fairly rigorous approach with
respect to the justification for the impairment. It could then be fairly
confident that when it nullified law or conduct there would be
something worth protecting.

Thirdly, the value-based approach is consistent with the notion that

a ‘unity of values’ underlies both the rights-infringement
determination and the limitation-justification analysis. The
language of the interpretation clause and the limitation clause
strongly suggests that both enquiries are driven by a desire to
serve the five values underlying our entire constitutional
enterprise: openness, democracy, human dignity, freedom, and
equality.49

10.4.1 The content and scope of the relevant protected

right
At a general level, the following two comments are relevant to determining
the content and scope of a right at the threshold enquiry. First, it is governed
by the general interpretation clause in section 39 of the Constitution. In
Walters, the Constitutional Court held that ‘both the rights and the
enactment … must be interpreted so as to promote the value system of an
open and democratic society based on human dignity, equality and
freedom’.50 In this regard, certain values will play a greater role in the
interpretation of particular rights than others.51 In addition, the
Constitutional Court has on several occasions stated that rights must be
interpreted contextually.52 Finally, international human rights law may be
relevant to the content of certain rights.53
Second, in a two-stage limitation process it is crucial not to restrict the
right unnecessarily by adopting an excessively narrow interpretation of the
right as this would result in the premature termination of the enquiry at the
expense of the litigant. However, too generous or insufficiently discerning
an interpretation would render the two-stage approach redundant as all the
work would be left to the limitation enquiry and the value of the substantive
approach to this stage of the enquiry would be undercut. Kentridge AJ
noted as much early on in the Constitutional Court’s jurisprudence: ‘The
two-stage approach may call for a broader interpretation of the fundamental
right, qualified only at the second stage.’ 54 An example of this approach
can be seen in De Reuck v Director of Public Prosecutions (Witwatersrand
Local Division) and Others where the Constitutional Court was faced with
the question of whether or not child pornography amounts to protected
speech.55 The State asked the Court to follow the approach of the US
Supreme Court where certain categories of expression are unprotected
forms of speech. The basis for this is that ‘such materials do not serve any
of the values traditionally considered as underlying freedom of expression,
namely, truth-seeking, free political activity and self-fulfillment’.56 The
Court rejected this argument, noting:
[O]ur Constitution is different from that of the United
States of America. Limitations of rights are dealt with
under section 36 of the Constitution and not at the
threshold level. Section 16(1) expressly protects the
freedom of expression in a manner that does not warrant
a narrow reading. Any restriction upon artistic creativity
must satisfy the rigours of the limitation analysis.57
The dangers of failing to observe this approach can be seen in New National
Party v Government of the Republic of South Africa and Others.58 In this
case, the majority found that ‘[t]he requirement that only those persons
whose names appear on the national voters roll may vote’ was a
‘constitutional requirement of the right to vote, and not a limitation of the
right’ (our emphasis).59 As such, the question the Court had to answer was
whether there was a ‘rational relationship between the [electoral] scheme …
and the achievement of a legitimate governmental purpose’.60 The question
was not whether the right to vote was justifiably limited under section 36(1)
by the electoral scheme.61 As Roux notes, ‘apart from a few perfunctory
remarks about the “importance of the right to vote”, the majority made no
effort to develop a principled understanding of the right in its constitutional
and political context’.62
Aside from these general observations, specific rights may also contain
features relevant to delineating their scope and content. Here a distinction
must be drawn between those rights written in ‘unqualified terms’,63 and
those that contain so-called internal modifiers. These internal modifiers
may either restrict the scope of the right or provide conditions for its
operation. In so far as the second category is concerned, two broad varieties
can be distinguished:
• First, there are internal modifiers that qualify the scope of the right either
by explicitly excluding certain practices from its protection or by
conditioning its application more subtly.
• Second, there are internal modifiers that modify or supplant the
limitation of specific rights.
Internal modifiers that restrict or enumerate the scope and content of rights
are relevant at this stage of the enquiry, while internal modifiers that relate
to the limitation of rights are relevant at the limitation stage.
The high-water mark of the Constitutional Court’s approach to the scope
and content of a right at this stage of the limitation analysis is the right to
privacy guaranteed in section 14 of the Constitution. Although section 14
does include internal modifiers which enumerate certain aspects of the
right, including the right not to have one’s person, home or property
searched, possessions seized or the privacy of communications infringed, its
full scope and content was left up to courts to decide.
In Bernstein and Others v Bester NO and Others, Ackermann J set out a
complex formulation of the right, noting:
The truism that no right is to be considered absolute,
implies that from the outset of interpretation each right
is always already limited by every other right accruing to
another citizen. In the context of privacy this would
mean that it is only the inner sanctum of a person, such
as his/her family life, sexual preference and home
 environment, which is shielded from erosion by
conflicting rights of the community. This implies that
community rights and the rights of fellow members place
a corresponding obligation on a citizen, thereby shaping
the abstract notion of individualism towards identifying
a concrete member of civil society. Privacy is
acknowledged in the truly personal realm, but as a
person moves into communal relations and activities
such as business and social interaction, the scope of
personal space shrinks accordingly.64
A similar approach can be seen in respect of the right to freedom of
expression guaranteed in section 16 of the Constitution. Unlike the right to
privacy, the right to freedom of expression contains three internal
modifiers.65 These internal modifiers are unique in that they are
definitional: they neither enumerate nor contract the scope of the right in
general terms. Rather, they specifically exclude certain forms of expression,
namely, propaganda for war, incitement to violence and hate speech, from
the right’s ambit.66 As a result, if a form of expression is considered to be
one of these three excluded forms, then the limitation of that expression will
not affect a right and the matter will end there. As for the content of the
right, in De Reuck, the Court employed a similar core/periphery
construction of the right to freedom of expression.
As noted above, these examples reflect the high-water mark of the
jurisprudence on this stage of the limitation enquiry.67 In a number of other
cases, the Court has failed to undertake a rigorous, meaningful analysis of
the scope and content of the impugned right. Instead, it has pushed the work
to the second stage and left behind little in the way of content for
subsequent cases involving the same right.

10.4.2 Is the right infringed by the measure?

Once the scope and content of the right in question has been determined,
the next question to be asked is whether the limiting measure infringes the
right as it is defined. According to the Constitutional Court, this involves
determining ‘the meaning and effect of the impugned enactment’ to see
whether it limits the relevant protected right.68 Often this question is
addressed simultaneously with that of scope and content, but it is
conceptually distinct.
This aspect of the threshold enquiry is often a fact-specific exercise and
turns mainly on the nature and breadth of the particular limiting measure.
Even when the content and scope of the right are clearly set out, this is a
complex enquiry. By way of illustration, in S v Jordan and Others (Sex
Workers Education and Advocacy Task Force and Others as Amici
Curiae),69 Sachs and O’Regan JJ, in their minority judgment, faced the
problem of where to place commercial sex on Bernstein’s privacy
continuum in order to determine whether the prohibition thereof infringed
the right to privacy. In concluding that it did infringe the right to privacy,
they noted:
[I]t is necessary to realise that there are a range of
factors relevant to distinguishing the core of privacy
from its penumbra. One of the considerations is the
nature of the relationship concerned: an invasion of the
relationship between partners, or parent and child, or
other intimate, meaningful and intensely personal
relationships will be a strong indication of a violation
close to the core of privacy. Another consideration is the
extent to which the body of a person is invaded: physical
searches or examinations are often invasive of privacy as
section 13 of the interim Constitution suggests. As we
observed before, the constitutional commitment to
human dignity invests a significant value in the
inviolability and worth of the human body. The right to
privacy, therefore, serves to protect and foster that
dignity. Commercial sex involves the most intimate of
activity taking place in the most impersonal and public
of realms, the market place; it is simultaneously all about
sex and all about money. Selling sex represents an
opportunity for women to earn money but within the
 framework of deeply structured sexist and patriarchal
patterns of social life. A prohibition on commercial sex,
therefore, will not ordinarily encroach upon intimate or
meaningful human relationships. Yet it will intrude upon
the intensely personal sphere of sexual intercourse, albeit
intercourse for reward.70

10.5 The justification stage: is the limiting

measure in terms of a law of general
application and reasonable and justifiable?
Once a court has determined that a particular measure limits a protected
right, it turns its attention to the second stage of the limitation analysis
where it must consider whether the limitation of the right can be justified. If
the court finds that the limitation is justified, the measure has passed the test
of constitutionality. If the court finds that the limitation is not justified, then
the legal provision will be unconstitutional and hence invalid. At this stage,
there are two independent requirements that must be met to justify the
limitation of a right:
• The limitation must be ‘in terms of law of general application’.71
• The limitation must be ‘reasonable and justifiable in an open and
democratic society based on equality, freedom and human dignity’.72

10.5.1 Law of general application

The first hurdle to be cleared at the justification stage of the enquiry is that
the limiting measure must be ‘sourced’ 73 in a law of general application.
This means that the limitation of a right by some means other than a law of
general application will always be unconstitutional. However, a limitation
done in terms of a law of general application may be saved from
unconstitutionality by the limitation clause. The two most common
rationales advanced for this requirement are specifically to prevent the
legislature from singling out an individual or group for punishment without
a trial and to respect the principle of the rule of law more generally.74 What
exactly is required by this stage of enquiry is unclear as the Constitutional
Court has yet to articulate a general set of requirements that must be met.
Rather, it has dealt with this requirement episodically and without much
fervour. What is clear is that this requirement makes demands of both the
form and the content of the source of the limiting measure.
First and foremost, the limiting measure must be in terms of something
the Court recognises as law.75 A decision by the Cabinet which is not
authorised or mandated by law or the decision of a big corporation would
therefore not constitute a law of general application. Similarly, the Electoral
Commission made a decision not to facilitate the registration of prisoners
for the elections prior to the country’s 1999 general elections. This decision
denied prisoners the right to vote afforded all adult citizens over 18 years of
age. The Constitutional Court thus found that the decision was an
administrative decision which was not sourced in a law of general
application.76 In such cases, where there is no law to speak of, the
operation of this requirement is fairly straightforward. The question of
which of the multitude of exercises of power will qualify as law for these
purposes is more complex. Less controversially, the term includes
legislation,77 common law 78 and customary law.79 In addition to
legislation, common law and customary law, the Court has considered other
exercises of government power to amount to law, including subordinate
legislation,80 municipal by-laws,81 domesticated international conventions
82 and rules of court.83
In President of the Republic of South Africa and Another v Hugo,84
Mokgoro and Kriegler JJ addressed the question of whether or not the
powers vested in the President as Head of State would qualify as law for the
purposes of section 36(1) in their separate dissenting opinions. (The
majority did not address the issue as it found that the measure in question
effectively did not limit the right to equality.) For her part, Mokgoro J held
that ‘[a]lthough the Presidential Act is not conventional legislation, in my
view, it satisfies [the law of general application] … precondition’.85
Conversely, Kriegler J held:
 The exercise by the President of the powers afforded by
s 82(1)(k) – even in the general manner he chose in this
instance – does not make ‘law’, nor can it be said to be
‘of general application’. The exercise of such power is
non-recurrent and specific, intended to benefit particular
persons or classes of persons, to do so once only, and is
given effect by an executive order directed to specific
state officials.86
As far as the content of such laws is concerned, the Constitution makes no
explicit demands of the impugned law in this regard beyond that it must be
of general application. To date, the Court has not grappled with the nature
of the general application requirement in great detail. In her dissenting
opinion in Hugo, Mokgoro J considered the correlative ‘prescribed by law’
requirement in the European Convention and Canadian Charter of Rights,
noting:
It can be seen then that several concerns underlie the
interpretation of ‘prescribed by law’. The need for
accessibility, precision and general application flows
from the concept of the rule of law. A person should be
able to know of the law, and be able to conform his or
her conduct to the law. Further, laws should apply
generally, rather than targeting specific individuals.87
Here, in addition to the law of general application requirement, Mokgoro J
placed two additional requirements on the content of the law: precision and
accessibility. Similarly, in Dawood and Another v Minister of Home Affairs
and Others; Shalabi and Another v Minister of Home Affairs and Others;
Thomas and Another v Minister of Home Affairs and Others, the
Constitutional Court held:
It is an important principle of the rule of law that rules
be stated in a clear and accessible manner. It is because
of this principle that section 36 requires that limitations
 of rights may be justifiable only if they are authorised by
a law of general application.88
These three demands – general application, accessibility and precision
(clarity) – can be said to reflect the minimalist position on what this
precondition demands of the content of the law in question. Some academic
commentators go further, setting out additional requirements to be met by
the content of the law in question in order to pass constitutional muster
under section 36(1).89 As far as which approach should be preferred when
it comes to the demands on content, the point could be made that these
broader concerns are best left to the next phase of the enquiry.90

10.5.2 Reasonable and justifiable in an open and

democratic society based on human dignity, equality
and freedom

10.5.2.1 Reconsidering the role of proportionality in the

justification enquiry
From the outset, the Constitutional Court’s jurisprudence on the limitation
of rights has turned almost entirely on the notion of proportionality or
balancing. This is notwithstanding the fact that proportionality does not
feature in the text of section 36 of the Constitution. An important criticism
is that it is unclear what exactly proportionality requires and how it drives
the limitation enquiry. This confusion was not necessarily inevitable as both
reasonableness and justifiability are capable of greater textual certainty.
However, the phrase, ‘reasonable and justifiable’, is generally understood
conjunctively as shorthand for the notion of proportionality or balancing.
Academics have not simplified matters, often accepting the conclusion of
proportionality without unpacking the term. This is not surprising as the
term’s flexibility lends itself to morally appealing but legally inexact
analysis.
However, neither the confusing nature of proportionality nor high-
minded theoretical critiques are sufficient to warrant a departure from this
metaphorical test that has been held to be the centrepiece of the limitation
enquiry by the Constitutional Court. Rather, the primary reason for
reconsidering the proportionality enquiry here is to make it simpler to
understand without changing its substance. By identifying those aspects of
the limitation enquiry that implicate proportionality and those that do not, it
is hoped that this section will not only demystify the process of limiting
rights, but also makes it clearer how proportionality actually works.
The first step in reconsidering the justificatory enquiry is to separate into
different questions the factors the Court considers when undertaking a
section 36 limitation analysis. Under the interim Constitution, certain
criteria had to be met by the limiting measure.91 As noted above, had the
Court chosen to follow the Oakes formulation, these criteria would have
been further divided into more specific questions.92 In the end, the
Constitutional Court and the drafters of the Constitution opted to move in
form in the other direction altogether: from a structured, sequential enquiry
with set criteria to be met to a global singular enquiry with factors to be
considered.93
Despite this, the first two questions in the Oakes formulation are present
in all the Constitutional Court’s limitation jurisprudence without exception.
These two questions are the following:
• Does the limiting measure serve a legitimate purpose (in an open and
democratic society based on equality, freedom and human dignity)?
• Is there a rational connection between the limiting measure and its stated
purpose?
What is more, these two questions find loose and partial expression in the
factors contained in sections 36(1)(b) 94 and 36(1)(d).95 Conceptually,
these are threshold tests 96 that are the starting point of limitation analysis
both logically and legally. These threshold tests are logically the starting
point as we cannot go on to balance competing rights and interests without
first quantifying them. The tests are legally the starting point in that if a
measure fails the two questions, then it can never justifiably limit a right.
Crucially, these two questions have nothing to do with proportionality or
balancing. That is to say, they are not relative to other factors in the
section 36 analysis and can be answered in isolation from the other factors
by using conventional legal reasoning.97 As a result, when it comes to
answering these two threshold questions, we do not have to choose between
‘formal or categorical reasoning’ and ‘balancing and proportionality’.98
Having isolated the threshold questions, what remains of the section 36
factors makes up the proportionality enquiry proper.99 By unpacking
section 36 in this manner, the point is not to deny the significance of
proportionality, but rather to place it in its proper context and, it is hoped,
make the term easier to understand.100
The next question to be asked is how these different enquiries or factors
interact. There is no sequence suggested in the text of section 36(1). Rather,
the balancing metaphor suggests that they should be considered
simultaneously. As noted above, this distinguishes section 36 from the
interim Constitution and Oakes. Under the interim Constitution, the
limitation process was structured into separate questions. In addition, these
questions were sequenced. This meant that if the enquiry failed at one of the
stages, the Court would not proceed to the next phase. However, under
section 36 even when the Court separates the factors into different
constituents – and generally considers the threshold questions first – it does
not sequence them but sometimes, ironically, considers them
mechanically.101 Having done so, the Court then balances all the factors,
notwithstanding the difference between threshold questions and those
relating to proportionality proper.102 Even when the Court effectively
terminates the enquiry after the threshold, it does so using the language of
balancing.103
This is a clear, if confounding, rejection of the Oakes formulation and
one that took many by surprise.104 Aside from general critiques of the
balancing exercise, the all-at-once approach raises specific problems in so
far as the threshold questions are concerned:
• First, the all-at-once approach is illogical as it can never be that a
measure that does not seek a constitutionally acceptable objective or
does not achieve that objective will pass the requirement of
proportionality.
• Second, and related to this, the all-at-once approach makes for extra
work as the Court could just as well stop after the threshold question is
failed.
• Third, the all-at-once approach is less analytically sound. Questions that
are initially addressed separately are often lumped together and resolved
using the all-inclusive language of proportionality, glossing over the
nuances of the decision-making process.
• Fourth, the all-at-once approach reduces precedential value by making
the balance struck too case-specific.

PAUSE FOR REFLECTION

Concerns regarding the all-at-once approach

The fact that the Constitutional Court glosses over the
nuances of the decision-making process by using the all-
inclusive language of proportionality to lump together and
resolve questions that were initially addressed separately
is clearly illustrated in its judgment in Makwanyane.
After first having considered retribution, prevention and
deterrence separately, the Constitutional Court went on to
conclude that:
[i]n the balancing process the principal factors that have to be
weighed are on the one hand the destruction of life and dignity that
is a consequence of the implementation of the death sentence, the
elements of arbitrariness and the possibility of error in the
enforcement of capital punishment, and the existence of a severe
alternative punishment (life imprisonment) and, on the other, the
claim that the death sentence is a greater deterrent to murder, and
will more effectively prevent its commission, than would a sentence
of life imprisonment, and that there is a public demand for
retributive justice to be imposed on murderers, which only the
death sentence can meet … Retribution cannot be accorded the
same weight under our Constitution as the rights to life and dignity,
which are the most important of all the rights in Chapter Three. It
has not been shown that the death sentence would be materially
more effective to deter or prevent murder than the alternative
sentence of life imprisonment would be. Taking these factors into
 account, as well as the elements of arbitrariness and the possibility
of error in enforcing the death penalty, the clear and convincing
case that is required to justify the death sentence as a penalty for
murder, has not been made out. The requirements of section 33(1)
have accordingly not been satisfied …105

In this regard, Woolman and Botha note:

The balancer is inclined to restrict her finding to the case at hand,
as the next case may, ostensibly, require that a different balance be
struck. While there may be advantages to such a judicious
approach, … there is a growing concern within the academy that
the case-by-case approach to constitutional analysis, in general,
and limitations analysis, in particular, blunts the transformative
potential of the Final Constitution.106

This is not just a problem with threshold questions and

proportionality questions. It also conflates different aspects
of the proportionality enquiry such as less restrictive, over-
broad and reasonable accommodation.

In discussing the justification enquiry, we follow the approach set out

below:
• What is the purpose of the limiting measure (not importance yet)? Is it
legitimate in an open and democratic society based on equality, freedom
and human dignity?
• What is the relationship between the limiting measure and its stated
purpose? More specifically, are they rationally connected?
• Are there clear, alternative means available that are less restrictive on the
full enjoyment of the right?
• Is the legitimate, rationally based limiting measure a proportionate
limitation on the right in question, taking into account the degree of
infringement, the nature of the right, the breadth of the measure and the
social good it achieves? This is balancing and proportionality proper.
In Figure 10.1, the question that the diagram seeks to answer is whether an
infringement of a fundamental right satisfies the various requirements of the
limitation clause. If it does, then the infringement is constitutionally valid
and the law authorising the infringement will be upheld by the courts.
Figure 10.1 The steps in the justification enquiry
The aim of reconsidering proportionality is not substantively to alter the
enquiry. The aim is rather to make proportionality more accessible by
providing a simplified lens through which to view the numerous decisions
involving limitation and to understand the different types of limitation
analyses undertaken by the courts. We discuss at each point the
jurisprudence that illustrates how courts have followed a particular enquiry.
As a brief example, Table 10.1 illustrates how, in Makwanyane, the Court
applied the threshold questions to the three objectives sought by the death
penalty, namely retribution, prevention and deterrence, before concluding
with the proportionality assessment. In the process, the differences between
the stages are well illustrated.
Table 10.1 Applying the threshold questions and the proportionality
assessment in Makwanyane

Purpose of Stage 1: Stage 2: Stage 3: Less Stage 4:

limiting Constitutionally Rational restrictive Proportionality
measure valid objective connection means
test

Retribution Although the On balancing

Court did not the different
state so clearly, factors, the
retribution all but Court reached
failed this basic the conclusion
threshold that the death
requirement: penalty was not
The constitutionally
Constitution justifiable by
is premised upgrading the
on the rights in
assumption question:
that ours will [t]he rights to
be a life and
constitutional dignity are
state founded the most
on the important of
recognition of all human
human rights rights …
… To be (para 144)
consistent and
with the value systematically
of ubuntu downgrading the
ours should goods aimed at
be a society by the measure.
that ‘wishes The Court
to prevent argued as
crime … [not] follows:
to kill • Retribution
criminals was not a valid
simply to get constitutional
even with objective and
them therefore:
(para 131).
cannot be
accorded the
Prevention The objective of Passed: Failed: same weight
prevention under our
passed this Constitution
 stage without The death The death as the rights
difficulty: sentence sentence to life and
Prevention is ensures ensures that dignity
another that the the criminal (para 146).
object of criminal will never • Prevention
punishment will never again commit could be
(para 128). again murders, but achieved by
commit it is not the life
murders only way of imprisonment
(para 128). doing so, and (less restrictive
life means).
imprisonment • Deterrence is
also serves less weighty in
this purpose the balancing
(para 128). process as:
[i]t has not
Deterrence Deterrence Passed (with Failed: been shown
passed without some It has not that the death
difficulty: reservations). been shown sentence
The need for a that the death would be
strong sentence materially
deterrent to would be more
violent crime materially effective to
is an end the more deter or
validity of effective to prevent
which is not deter or murder than
open to prevent the
question. The murder than alternative
state is the sentence of
clearly alternative life
entitled, sentence of imprisonment
indeed life would be
obliged, to imprisonment (paras 146
take action to would be and 127).
protect (para 146).
human life
against
violation by
others
(para 117).

COUNTER POINT
A critique of the balancing process
Woolman and Botha critique the balancing process on a
number of theoretical grounds:
• First, they point out that people value things differently in
qualitative and not solely quantitative terms (pluralism).
The things that we value are not always (or often)
commensurate with one another (incommensurability).
As a result, balancing ‘requires substantially more than
the invocation of such pat metaphors as the “scales of
justice” (complexity)’.107
• Second, they argue that ‘the Final Constitution – like
most constitutional texts – provides little or no guidance
as to how a court should determine the relative weight to
be attached to conflicting rights and interests. One
possible result is that the weighting and the ranking of
interests are not grounded in constitutional interpretation
… but are based, instead, on the subjective preferences
of individual judges. This enables judges to skirt the
demands that attach to difficult and controversial value-
choices by employing the ostensibly neutral, objective or
scientific language of balancing’.108
• Third, they point out that the balancing approach has
historically been associated with conservative and
incrementalist approaches to adjudication. As a result,
the context or case-specific nature of the balancing
approach ‘blunts the transformative potential of the Final
Constitution’.109
• Fourth, balancing can lead judges to employ ‘scientific’
language and concepts, such as cost-benefit analysis,
Woolman and Botha argue, which ‘invites a new type of
formalism which, like all formalist doctrines, tends to
eschew dialogue about important moral and political
issues’.110
10.5.2.2 Section 36 in practice

10.5.2.2.1 The purpose of the limiting measure

One of the factors listed in section 36 is ‘the importance of the purpose of
the limitation’. This factor is made up of two separate subcomponents: first,
the purpose of the limiting measure, and second, its importance in an open
and democratic society.111 At this stage of the enquiry the focus is on the
purpose of the limiting measure. The limiting measure (the aim it is
designed to meet) must pursue a legitimate constitutional purpose.112 In
determining whether or not a particular limiting measure is legitimate,
courts must be mindful not to overstep their role and enter the realm of
policy making.
There are no hard-and-fast rules for determining whether the purpose
will be considered constitutionally legitimate. Broadly speaking, the
constitutional values of openness, democracy, freedom, equality and dignity
will play a role in determining what a legitimate purpose is. Furthermore, if
the purpose of the limiting measure is to comply with an obligation laid out
in the Constitution or is closely connected to the fulfilment of a right
contained in Chapter 2, then this requirement will clearly be met.113
Examples of purposes that have been held to be legitimate include:
• creating and maintaining a disciplined military force 114
• preventing the use and proliferation of harmful substances 115
• maintaining discipline in schools 116
• administering the recovery of debts 117
• regulating of the gambling industry 118
• regulating public broadcasting 119
• preventing and punishing commercial sex (prostitution) 120
• the general administration of justice 121
• protecting the privacy and dignity of people involved in divorce
proceedings, in particular children.122
One example of a purpose that failed at this point of the enquiry is the
enforcement of ‘private moral views’. In National Coalition for Gay and
Lesbian Equality and Another v Minister of Justice and Others, Ackermann
J stated:
The enforcement of the private moral views of a section
of the community, which are based to a large extent on
nothing more than prejudice, cannot qualify as such a
legitimate purpose. There is accordingly nothing, in the
proportionality enquiry, to weigh against the extent of
the limitation and its harmful impact on gays. It would
therefore seem that there is no justification for the
limitation.123
As noted above, the Court in Makwanyane considered the imposition of the
death penalty as a means to achieve not one but three purposes: retribution,
prevention and deterrence. Although the Court did not go so far as to reject
deterrence as a constitutionally acceptable purpose outright, it did note that
‘[t]o be consistent with the value of ubuntu ours should be a society that
“wishes to prevent crime … [not] to kill criminals simply to get even with
them” ’.124
Once a court is satisfied that the limiting measure pursues a
constitutionally legitimate purpose, the focus turns to the relationship
between that purpose and the means chosen to achieve it.

10.5.2.2.2 The rational connection requirement

The first basic question to be asked is whether the means chosen achieves
its accepted purpose.125 This threshold stage of the analysis focuses
narrowly on whether there is a rational connection between the limiting
measure and the purpose it seeks to achieve. At this stage, the enquiry is not
concerned with whether the means chosen is the optimum means of
achieving the measure nor whether there are more appropriate means of
doing so. It is not often that a measure will fail this leg of the test although
there are some examples of it doing so.
 In South African National Defence Union v Minister of Defence,126 the
Constitutional Court first determined that maintaining a disciplined military
(required under section 200(1) of the Constitution) was clearly a
constitutionally legitimate objective. The Court then held that the blanket
ban on soldiers forming and joining trade unions was not rationally
connected to that objective.127
Further, the Court held in S v Bhulwana, S v Gwadiso:
In my view, section 21(1)(a)(i) of the Act cannot be
justified in terms of section 33(1) of the Constitution.
Although the need to suppress illicit drug trafficking is
an urgent and pressing one, it is not clear how, if at all,
the presumption furthers such an objective. In addition,
there appears to be no logical connection between the
fact proved (possession of 115 g) and the fact presumed
(dealing).128
In addition, there are other examples of limiting measures that have failed
this basic level of scrutiny.129 As noted above, it makes little sense to
undertake a complex consideration of the balance to be struck between a
right and a limiting measure which bears no rational relationship to its
aim.130

10.5.2.2.3 Less restrictive, alternative means of achieving the end

Having established that the reason for limiting the right in question is
constitutionally acceptable and that the measure in question rationally
achieves that end, the Court may consider the availability of a less
restrictive means.131 This requirement was the only addition the drafters of
the Constitution made to the Makwanyane factors. Often, the question of
the availability of less restrictive means is conceptually or practically
conflated, in both the literature and jurisprudence, with the related notion of
overbreadth. For example, the majority in Prince v President of the Law
Society of the Cape of Good Hope stated:
 A challenge to the constitutionality of legislation on the
grounds that it is overbroad is in essence a challenge
based on the contention that the legitimate government
purpose served by the legislation could be achieved by
less restrictive means.132
However, there are in fact two conceptually different enquiries at play here.
The one we are concerned with here considers the possibility of a
hypothetical, alternative measure that is less restrictive of the right. We may
refer to this as the less restrictive alternative means enquiry. The other
considers whether the chosen measure – considering all the circumstances
and not merely the effect on the right – is well-tailored in light of all the
relevant circumstances.133 We may refer to this as the well-tailored
enquiry. This second enquiry can only be addressed as part of the
proportionality enquiry when all the relevant factors are considered and not
merely the measure’s effect on the right.
When the global proportionality approach is taken, it may seem
superfluous to separate them, especially since the Court so often conflates
the two. However, there are a number of reasons for, first, maintaining the
distinction between these two related but distinct enquiries and, second,
considering the least restrictive, alternative means enquiry before
considering the well-tailored enquiry.
First, maintaining the distinction addresses the difficult question of how
far the Court should go in considering less restrictive means. Means that are
less restrictive will always be possible to identify but might not – on
balance – be proportionate when considering all the factors at play, for
example cost and other rights. In this sense, a means may not be less
restrictive, but may still be proportional. While the Constitutional Court has
stated that it is not its job to find the least restrictive means, it is rightly far
less deferential when considering whether the means chosen by the
legislature are well tailored (proportionate) to their purpose in light of all
the relevant section 36 factors.
Second, maintaining the distinction assists in the proper formulation of
the notion of reasonable accommodation. This notion, discussed in more
detail below, is often understood as a question of whether there are less
restrictive means available. However, it is better understood as a reverse
proportionality enquiry. In other words, the question is not whether the state
has gone too far in restricting the enjoyment of the right (negative
protection), but rather whether the state should have gone further by taking
positive steps to prevent the effective limitation of the right (positive
protection).134 This broader enquiry can only be undertaken at the
proportionality stage of the enquiry when all the relevant factors are
considered and not merely the possible impact on the right.
Understanding it through the lens of less restrictive means leads to the
problem, discussed above, that there are generally always less restrictive
means. This in turn means that a reasonable accommodation is always
notionally possible. However, when considered as a reverse proportionality
enquiry, the question is not whether less restrictive means can be found, but
rather whether they should be employed, taking into consideration all the
factors including the cost to society. Here, too, the Court must be careful
not to transform its role into that of policy making.
Finally, if the distinction is maintained, then the less restrictive
alternative enquiry can be viewed as a gentle enticement to the courts, as
well as the executive and the legislature, to look for an alternative means
before resorting to the difficult task of trying to balance two hard ends. It is
an invitation to consider alternative means that are less restrictive of the
right as a factor in the limitation process. Naturally, this minimalist
approach makes the most sense when considered before undertaking a full-
blown proportionality enquiry.
Admittedly, if this narrow construction of this factor is adopted, the
number of examples of limiting measures failing this leg of the test is
significantly diminished. Also, they become more difficult to identify given
the tendency to elide this with aspects of the proportionality enquiry.
Nevertheless, there are some examples of the Court favouring less
restrictive alternative means. In S v Williams and Others, for example,
Langa J rejected the suggestion that whipping was justified (under the
limitation clause) as a superior alternative to a custodial sentence on the
ground that more humane sentencing options were available.135 Further, in
a number of cases the Constitutional Court has refused to justify reverse-
onus presumptions as limitations on the right to be presumed innocent on
the basis that there are less restrictive means available to achieve the end,
namely evidentiary burdens.136

10.5.2.2.4 Balancing and proportionality proper

Once it has been determined that the end is legitimate, that the means meet
the end and that the court has declined to raise alternative, less restrictive
means, then at this point we have something worth balancing. This stage
involves balancing or proportionality which turns intimately on the facts. In
broad terms, this stage involves the balancing of competing goods: the right
and the limiting measure that serves a constitutionally acceptable purpose.
Returning to the quote in Walters:
In essence this requires a weighing-up of the nature and
importance of the right(s) that are limited together with
the extent of the limitation as against the importance and
purpose of the limiting enactment. Section 36(1) of the
Constitution spells out these factors that have to be put
into the scales in making a proportional evaluation of all
the counterpoised rights and interests involved.137
Before considering how this balancing process might unfold, there are a
few general comments to be made about how the right and the limitation
influence the proportionality process generally.
As far as stacking the rights side of the balancing scales is concerned,
there are two elements to be considered. The first is the relative importance
of the right under the scheme of rights/interests protected by the
Constitution. The question of hierarchy is controversial and subject to
contradictory judicial pronouncements. There is no formal hierarchy of
rights under the Constitution138 and the Constitutional Court has on a
number of occasions denied any such hierarchy.139 However, when it
comes to the process of limiting certain rights, the Court has on a number of
occasions suggested that there is, in fact, some form of hierarchy under the
Constitution. The Court noted in National Coalition for Gay and Lesbian
Equality that ‘[a]lthough section 36(1) does not expressly mention the
importance of the right, this is a factor which must of necessity be taken
into account in any proportionality evaluation’ (our emphasis).140 In
Makwanyane, the Court stated that ‘[t]he rights to life and dignity are the
most important of all human rights …’ 141 More recently, in its limitation
analysis in Bhe and Others v Khayelitsha Magistrate and Others, the Court
noted:
The rights violated are important rights, particularly in
the South African context. The rights to equality and
dignity are of the most valuable of rights in any open and
democratic state. They assume special importance in
South Africa because of our past history of inequality
and hurtful discrimination on grounds that include race
and gender.142
At other times, the Court has held that certain rights are not paramount,
implying some form of hierarchy.143 Similarly, our courts have noted that
we do not place the same premium on privacy as other countries.144 If
there is some hierarchy, logically those rights which are directly based on
the founding constitutional values of dignity, freedom and equality are
likely to receive greater attention than others.
The second and more difficult element of stacking the rights side of the
scale is determining which portion of the right the limiting measure strikes
at. Does it strike at the core of the right or its periphery (or penumbra 145)?
This is the section 36 factor referred to as the ‘extent of the limitation’.146
However, it has as much to do with the nature of the right as it does the
limitation (not every right is capable of part-infringement). If the threshold
enquiry is comprehensive, then the groundwork for this aspect of the
enquiry will already have been covered in that the nature and scope of the
right in question will have been covered in some detail. What is left then is
to locate the impact of the limiting measure on the right and assign it a
nominal value to be balanced against the competing value of the limiting
measure. Unfortunately, as part of a more general reluctance to give rights
content,147 the Constitutional Court has refused to undertake a detailed
analysis of the core and periphery of each right on a number of
occasions.148
Notably, when it comes to proportionality exercises, it is the impact of
the measure on the right that will set the bar to be met by the
justification.149 In other words, the point of reference is the right itself. As
a general rule, the greater the impact is, the more justification is required. In
S v Manamela and Another (Director-General of Justice Intervening), the
Constitutional Court stated:
As a general rule, the more serious the impact of the
measure on the right, the more persuasive or compelling
the justification must be. Ultimately, the question is one
of degree to be assessed in the concrete legislative and
social setting of the measure, paying due regard to the
means which are realistically available in our country at
this stage, but without losing sight of the ultimate values
to be protected.150
Once the importance of the right and the extent of the limitation are stacked
on one end of the balancing scale, the opposing end is to be filled with the
limiting measure. As noted above, there is little point in undertaking a
balancing process in respect of a limiting measure that has been found
either not to be rationally connected to a constitutionally acceptable
purpose, or which can be reached through other, less restrictive means
(although this has not stopped the Constitutional Court from doing so).
Therefore, a proper balancing exercise involves a limiting measure that
meets this minimum, internal threshold. What is left to consider are the
external aspects of the limitation: a more thorough consideration of its
objectives and aims in an open and democratic society based on freedom,
equality and dignity.
At this point, the analysis can become complicated by the influence of
other rights implicated by the measure or, more specifically, its purpose. In
Christian Education, the limiting measure – the ban on corporal punishment
in schools – was designed to protect the dignity of children.151 Further, in
considering the weight to be assigned to the limiting measure and the
interest it seeks to achieve or protect, the Court has at times looked to the
relevant practice of other ‘open and democratic’ societies. As O’Regan and
Sachs JJ noted in their dissent in Jordan: ‘In approaching the question of
proportionality, the Court is obliged to apply the standards of an open and
democratic society.’ 152 The Court has undertaken such reviews in a
number of important cases, including National Coalition for Gay and
Lesbian Equality 153 and Prince.154
Once the Court has weighed the right and the limiting measure in their
fullest sense and has taken into account the implications for other rights,
then it is left to resolve the conflicting ends using the balancing and
proportionality metaphors. When it comes to this stage, there are broadly
two possible arguments available to the Court:
• First, the Court may conclude that the limitation is justifiable because its
effect on the right is proportionate.155 This, in practice, often involves a
finding that the measure strikes the periphery of the right, making its
limitation easier to justify.
• Alternatively, the Court may decide that the limitation is not justifiable,
in other words the right must prevail. The reason may be because:
– the effect on the right is disproportionate to the good achieved by the
measure
– the means chosen is disproportionate in the sense that it is not well
tailored to the purpose.156
When the measure is held to be reasonable and justifiable, or proportionate
to the impact on the right and its importance, this is balancing in its purest
sense: where ‘one right (or interest or value) will simply “outweigh”
another right (or interest or value)’.157 The Court has been reluctant to
make a hard choice of one fixed, compellingly important ‘good’ (in this
case the limiting measure) over another (the right). Rather, it has tended (at
times simultaneously) to devalue the rights side of the scale, most often by
minimising the impact of the limiting measure on the right. Alternatively, it
has elevated the limitation side, often by underlining the social good
achieved by the measure. For example, in reaching the conclusion that the
limitation of the right to freedom of expression occasioned by the
prohibition on the possession of child pornography was reasonable and
justifiable, the Constitutional Court in De Reuck focused on the impact of
the limiting measure on the right. It noted that pornography ‘does not
implicate the core values of the right’.158 Rather it is an ‘expression of
little value which is found on the periphery of the right’.159 Against this, it
weighed the compelling interest of protecting children, as well as the
dignity of society as a whole,160 and concluded that the peripheral
infringement of the right was outweighed by the interests protected by the
limiting measure.161

PAUSE FOR REFLECTION

How should the Constitutional Court handle hard

choices?
Woolman and Botha set out the complexities of making
hard choices as follows:
How should the Court handle hard choices? First, the Court must
be candid and recognise that there will be situations in which
constitutional goods will urge independent and irreconcilable
claims upon us: In such situations, we will have to choose between
incommensurable goods. Second, the Court must acknowledge
that it lacks a set of second-order rules which might tell us how to
reconcile competing goods with one another. Most importantly, the
Court must not view the choice of one good over another good in
hard cases as arbitrary. Instead, it must be candid about the
reasons for its choices and hope that its candour about the
reasons for its choices ultimately reflects the exercise of good
judgment: for only such candour will allow the litigants to become
full citizens through their participation in the process of giving the
basic law meaning. This recognition, in turn, holds out the promise
that the basic law will come to possess the normative legitimacy
associated with a just legal order.162

When the limiting measure is found to be unjustifiable and the right

prevails, this too is often because the effect on the right is deemed
disproportionate or unjustifiable in light of the good achieved by the
measure. It may also be because the right is too important and the effect on
it too great and/or because the good achieved by the measure is not
sufficiently meritorious.
An example of this can be seen in Islamic Unity Convention v
Independent Broadcasting Authority and Others.163 In this case, the
Constitutional Court struck down the legislative provision prohibiting the
broadcasting of any material ‘likely to prejudice relations between sections
of the population’.164 The Court found that ‘[t]he inroads on the right to
freedom of expression made by the prohibition on which the complaint is
based are far too extensive and outweigh the factors considered by the
Board as ameliorating their impact’.165
Similarly, in Potgieter v Lid van die Uitvoerende Raad: Gesondheid
Provinsiale Regering Gauteng en Andere, the Constitutional Court found
section 68(4) of the Mental Health Act,166 which provided a three-month
prescription period for legal proceedings to be brought against any person
in respect of acts performed under the Act, to be an unjustifiable limitation
on the right to access courts.167 The Court stated that this was ‘particularly
outrageous and drastic, having regard to the category of persons it
strikes’.168
It is often the case that the limiting measure will fail not as a result of the
proportionality of the end it seeks to achieve in relation to the impact on the
right, in other words failing the balancing test, but rather because the means
chosen to achieve that end is not well tailored to its purpose.
In Islamic Unity Convention, the Constitutional Court noted that ‘[i]t has
… not been shown that the very real need to protect dignity, equality and
the development of national unity could not be adequately served by the
enactment of a provision which is appropriately tailored and more narrowly
focused’.169 In South African National Defence Union, the Constitutional
Court found that a legislative provision 170 that limited the right to freedom
of expression by prohibiting members of the SANDF from performing any
‘act of public protest’ was not reasonable and justifiable as it ‘goes far
further than is necessary to ensure [its] end’.171 In Coetzee v Government
of the Republic of South Africa; Matiso and Others v Commanding Officer
Port Elizabeth Prison and Others, the Court held that ‘although [the]
objective of enforcing judgment debts was legitimate and reasonable, the
means chosen were not reasonable … because the provisions were
overbroad, catching not only those who would not pay, but also those who
could not’.172
Finally, the notion of reasonable accommodation requires special
consideration. At the heart of this notion lies the right to be different. In
Christian Education, the Constitutional Court summed up the question as
follows:
The underlying problem in any open and democratic
society based on human dignity, equality and freedom in
which conscience and religious freedom has [sic] to be
regarded with appropriate seriousness, is how far such
democracy can and must go in allowing members of
religious communities to define for themselves which
laws they will obey and which not. Such a society can
cohere only if all its participants accept that certain basic
norms and standards are binding. Accordingly, believers
cannot claim an automatic right to be exempted by their
beliefs from the laws of the land. At the same time, the
state should, wherever reasonably possible, seek to avoid
putting believers to extremely painful and intensely
burdensome choices of either being true to their faith or
else respectful of the law.173
Conceptually, the reasonable accommodation notion is unique in that it is
an exercise in reverse proportionality. This is done by shifting the focus of
the enquiry from the justifiability of the limiting measure to the justifiability
of the effect of that measure on a particular group or individual. As Sachs J
noted in Christian Education:
In the present matter it is clear that what is in issue is not
so much whether a general prohibition on corporal
punishment in schools can be justified, but whether the
impact of such a prohibition on the religious beliefs and
 practices of the members of the appellant can be justified
under the limitations test of section 36. More precisely,
the proportionality exercise has to relate to whether the
failure to accommodate the appellant’s religious belief
and practice by means of the exemption for which the
appellant asked, can be accepted as reasonable and
justifiable in an open and democratic society based on
human dignity, freedom and equality.174
Similarly, in Prince, the Constitutional Court phrased its task as deciding
whether or not ‘the failure to provide an exception in respect of the use of
cannabis for religious purposes by Rastafari infringed their religious rights
under the Constitution’.175 The question the Court must address is not
whether the state has gone too far in restricting the enjoyment of a right
(negative protection), but rather whether the state should have gone further
by taking positive steps to prevent effective limitation of a right (positive
protection).176 It is about the failure of the state to act in light of the
proportional effect on the right, not the measures already taken.177
It is difficult to draw lines around how the reasonable accommodation
test works in practice. However, the Court set out some ground rules in
MEC for Education: Kwazulu-Natal and Others v Pillay.178 The Court had
to decide whether a school was required reasonably to accommodate a
learner’s desire to wear a nose stud in pursuit of her rights to religion and
culture. It considered first the importance of the practice to the learner and
second, the ‘hardship that permitting her to wear the stud would cause the
school’.179 In respect of the importance of the practice to the learner, the
Court found that ‘[p]reventing her from wearing it for several hours of each
school day would undermine the practice and therefore constitute a
significant infringement of her religious and cultural identity’.180 In
respect of the effect on the school of permitting the learner to wear the nose
stud, the Court found that accommodating the practice would not impose
‘an undue burden upon the school’.181 As a result, the balance was tipped
in favour of the learner being allowed to wear the nose stud. The Court
ordered the school to make a ‘reasonable accommodation’ of this
practice.182
Clearly, in addressing the notion of reasonable accommodation, courts
must be mindful of the separation of powers. As Sachs J noted in Prince:
The search for an appropriate accommodation in this
frontier legal territory accordingly imposes a
particularly heavy responsibility on the courts to be
sensitive to considerations of institutional competence
and the separation of powers. Undue judicial
adventurism can be as damaging as excessive judicial
timidity.183

PAUSE FOR REFLECTION

Applying the notion of reasonable

accommodation
The notion of reasonable accommodation applies in two
distinct contexts. First, it can apply in cases where a court
has to decide whether discrimination is either fair or unfair
and hence in breach of section 9 of the Constitution or the
relevant section of the Promotion of Equality and
Prevention of Unfair Discrimination Act (PEPUDA).184
Second, it can apply when dealing with the justificatory
stage to determine whether the limitation was justifiable or
not.
In the second context, the question focuses on whether
the state has done enough to accommodate the interests
of the person or group who claim that their rights have
been infringed. Put differently, where a law of general
application infringes on a right, the question is whether this
infringement is justifiable because the law has reasonably
accommodated the interests of those whose rights are
being infringed by the legislative provision. In such cases,
 the burden of proof, discussed in the next section,
becomes important.

10.6 The burden of justification

The jurisprudence of the Constitutional Court on the question of whether
there is a burden of proof or justification on the party seeking to rely on
the limiting measure to justify it under section 36 is complex. The general
principle was set out in Makwanyane as follows: ‘It is for the legislature, or
the party relying on the legislation, to establish this justification, and not for
the party challenging it to show that it was not justified.’ 185 This has been
repeated in a number of subsequent cases.
The difficulty arises when the government or private actor seeking to
rely on the limiting measure makes an unsatisfactory attempt at justifying it
under section 36 or none at all. If the burden of justification was applied
strictly, in other words as an onus in the proper sense, then in such instances
the limitation would fail. However, the Court has pointed out on a number
of occasions that this is a unique form of onus, an ‘onus of a special
type’.186
What is required under this special type of onus is less clear. The Court
in Moise v Greater Germiston Transitional Local Council noted:
It is also no longer doubted that, once a limitation has
been found to exist, the burden of justification under
s 36(1) rests on the party asserting that the limitation is
saved by the application of the provisions of the section.
The weighing up exercise is ultimately concerned with
the proportional assessment of competing interests but,
to the extent that justification rests on factual and/or
policy considerations, the party contending for
justification must put such material before the Court. It
is for this reason that the government functionary
responsible for legislation that is being challenged on
constitutional grounds must be cited as a party. If the
 government wishes to defend the particular enactment, it
then has the opportunity – indeed an obligation – to do
so. The obligation includes not only the submission of
legal argument but the placing before Court of the
requisite factual material and policy considerations.
Therefore, although the burden of justification under
s 36 is no ordinary onus, failure by government to submit
such data and argument may in appropriate cases tip the
scales against it and result in the invalidation of the
challenged enactment.187
Further, in Minister of Home Affairs v National Institute for Crime
Prevention and the Re-Integration of Offenders (NICRO) and Others, the
Court laid down the general principles:
Where justification depends on factual material, the
party relying on justification must establish the facts on
which the justification depends. Justification may,
however, depend not on disputed facts but on policies
directed to legitimate governmental concerns. If that be
the case, the party relying on justification should place
sufficient information before the court as to the policy
that is being furthered, the reasons for that policy, and
why it is considered reasonable in pursuit of that policy
to limit a constitutional right. That is important, for if
this is not done the court may be unable to discern what
the policy is, and the party making the constitutional
challenge does not have the opportunity of rebutting the
contention through countervailing factual material or
expert opinion. A failure to place such information
before the court, or to spell out the reasons for the
limitation, may be fatal to the justification claim. There
may however be cases where despite the absence of such
information on the record, a court is nonetheless able to
uphold a claim of justification based on common sense
and judicial knowledge.188
From this we can distil three species of justification arguments: factual
arguments, policy-based arguments and legal arguments. The Court appears
to suggest that the onus that will be applied will differ depending on which
form (or forms) of argument are being applied. Although the Court will at
times come to the assistance of the state or the individual trying to justify
the limitation, it can only do so in terms of arguments and not in terms of
facts.189 Similarly, when it comes to policy-based arguments, the Court
must be wary of its role and that of the executive under the separation of
powers doctrine. However, when there is scope for the Court to come to the
assistance of an ailing justificatory argument, it has been willing to do so
with varying levels of enthusiasm.
On a number of other occasions the Court has come to the assistance of
the government when it comes to justifying limiting measures. In National
Coalition for Gay and Lesbian Equality, it held that ‘even if the respondent
makes no attempt to discharge its “burden of justification”, the court must
nevertheless consider the possibility that a limitation of rights is
justifiable’.190 In Phillips and Another v Director of Public Prosecutions
and Others, Yacoob J noted that ‘the absence of evidence and argument
from the state does not exempt the court from the obligation to conduct the
justification analysis and to apply [the limitation clause]’.191 More
recently, in Johncom Media Investments Limited v M and Others, Jafta AJ
noted that even though ‘[n]o party contended that the section 36
justification requirements were met … [i]t is nevertheless necessary to deal
with the question of justification briefly’.192 Conversely, in Centre for
Child Law v Minister for Justice and Constitutional Development and
Others, Cameron J, having criticised the government’s attempts at
justification, found that ‘no maintainable justification has been advanced’
for including children in the minimum sentencing regime for certain
offences.193

10.7 Internal limitations

As noted above, a number of rights are subject to internal modifiers or
internal limitations which, broadly speaking, modify the scope and content
of the right or the manner in which it is limited. These internal limitations
limit the scope and content of the right and must be considered before
considering the section 36 limitation clause. This means a court first looks
at the internal limitation to determine the scope and content of the right and
the outer limits of that right. If there is still an infringement of the right
despite the fact that the right is internally limited, then the court has regard
to the limitation clause.
Sections 9, 15, 24, 25, 26, 27, 29, 30, 31 and 32 of the Constitution all
contain some form of internal limitation provisions. The relationship
between these provisions and section 36 is complex. The Court has
generally chosen to undertake, at times mechanically, section 36 analyses in
conjunction with these internal limitation provisions. Beyond this, it has
avoided adopting a general approach to managing this relationship. As
such, each of the internal limitations must be considered in the context of
the relevant right.194 However, two examples deserve further mention as
they illustrate the difficulties associated with simultaneously applying
internal limitations provisions and section 36.
In respect of the right to equality, section 9 of the Constitution includes
the right not to be subject to unfair discrimination by the state or private
individuals.195 In Harksen v Lane NO and Others, the Constitutional Court
set out a complex test for determining first whether discrimination has taken
place and second whether such discrimination is unfair.196 This second test
contains a number of factors that are similar to those considered under
section 36.197 This has led some to argue that the section 9 Harksen
‘enquiry into unfair discrimination … exhausts a meaningful enquiry into
the justification for any such violations – whether it occurs in terms of law
or conduct’.198 However, in each case where the Court has applied this
test, it has continued to apply section 36 independently.199 That being said,
the Court has yet to find that an act that amounts to unfair discrimination is
a justifiable limitation of the right to equality under section 36.
 Similarly, the Court’s complex approach to section 25(1) has called into
question the usefulness of section 36.200 In First National Bank, the Court
developed a complex test for determining whether property had been
arbitrarily deprived in violation of section 25(1) of the Constitution.201 The
Court then went on to consider the relationship between this internal
limitation and section 36. It acknowledged the ‘circularity’ of applying
section 36 in such circumstances,202 but noted that ‘[n]either the text nor
the purpose of section 36 suggests that any right in the Bill of Rights is
excluded from limitation under its provisions’.203 Having set out the
difficulty, the Court then noted:
In view of the conclusion ultimately reached on this part
of the case, it is not necessary to decide this question
finally here. It will be assumed, without deciding, that an
infringement of section 25(1) of the Constitution is
subject to the provisions of section 36.204
The argument of circularity is even stronger in the case of section 25(1) as
the Constitutional Court’s formulation closely approximates, to the extent
of specifically referencing,205 the proportionality test in section 36.
Woolman and Botha note:
[The section 25] test for arbitrary deprivation of
property consciously incorporates a sliding scale
proportionality assessment – the sine qua non of
limitations enquiries – into the rights stage of the
analysis. Little, if any, space remains for additional
forms of justification to be offered under [section 36].206
Nevertheless, the Court continues to apply internal limitations provisions
and section 36 conjunctively, but generally to no practical effect.

PAUSE FOR REFLECTION

The interaction between legislation giving effect
to certain rights and the limitation clause
A number of provisions in the Bill of Rights require the
legislature to enact specific legislation to give effect to
certain rights. See, for example, section 9(4) and
section 33. Although they will be dealt with in more detail in
the relevant chapters, brief mention must be made of the
interaction between such legislation and the limitation
clause. The general principle governing the relationship
between such legislation and the right it seeks to give
effect to is that ‘courts must assume that the [legislation] is
consistent with the Constitution and claims must be
decided within its margins’.207 The upshot of this is that ‘a
litigant cannot circumvent legislation enacted to give effect
to a constitutional right by attempting to rely directly on the
constitutional right’,208 but must challenge the legislation
in its entirety if they are not happy with it.
Although the limitation aspect is given less attention,
logically both the application and the limitation of a right
must be addressed within the margins of the relevant piece
of legislation. As a result, aspects of the section 36 enquiry
are often incorporated in substance in provisions of such
legislation. For example, under the Promotion of
Administrative Justice Act (PAJA),209 ‘the requirements of
fair administrative procedure contemplated in s 3(2) may
be departed from where it is reasonable and justifiable to
do so’,210 taking into account, among others, the object of
the empowering provision and the nature and the purpose
of the decision. Here the Court uses section 36 in
substance to interpret a provision of PAJA, a piece of
legislation. Similarly, section 14 of the PEPUDA set outs
the requirements for determining whether discrimination is
unfair. This closely maps the questions asked under
 section 36, including the notion of reasonable
accommodation.
This approach does not mean that the right falls away
entirely. Rather, it will remain relevant, whether expressly
or by implication, to the interpretation of the legislation in
question. As the Court held in National Education Health &
Allied Workers Union (NEHAWU) v University of Cape
Town and Others in the context of the Labour Relations Act
(LRA): 211
[T]he LRA gives content to section 23 of the Constitution and must
therefore be construed and applied consistently with that purpose.
Section 3(b) of the LRA underscores this by requiring that the
provisions of the LRA must be interpreted ‘in compliance with the
Constitution’.212

This opens up the possibility of section 36 having an

interpretative influence on the correlative limitations
provisions of the legislation in question. For example, in
MEC: Department of Agriculture, Conservation and
Environment and Another v HTF Developers (Pty) Limited,
one of the few Constitutional Court cases that deal with
section 24, Ngcobo J wrote:
Of course procedural fairness as envisaged in s 33 of PAJA is
flexible. In the case of s 33, the right to just administrative action
may be limited under s 36(1). In the case of PAJA, the requirements
of fair administrative procedure contemplated in s 3(2) may be
departed from where it is reasonable and justifiable to do so.
Factors that are relevant to the question whether there should be a
departure include the objects of the empowering provision; the
nature and the purpose of the decision; and the urgency of taking
the decision or the urgency of the matter.213

10.8 The limitation of rights apart from

section 36(1)
Section 36(2) provides that no law may limit any right entrenched in the
Bill of Rights except as provided for in subsection (1) or ‘in any other
provision of the Constitution’. An example of such a provision can be found
in the amnesty provision contained in the epilogue of the interim
Constitution.214 In Azanian Peoples Organization (AZAPO) and Others v
President of the Republic of South Africa and Others, the Constitutional
Court found that this amnesty provision condoned any possible violation of
the right to access court of victims of apartheid crimes and their relatives by
the granting of civil and criminal amnesty by the TRC.215
The more difficult question is how to justify rights violations based
indirectly on provisions of the Constitution. The Court has dealt with the
possibility of the violation of rights by section 173 of the Constitution on
two separate occasions without clarifying the textual basis for doing so.216
In South African Broadcasting Corporation Limited v National Director of
Public Prosecutions and Others, the majority applied a proportionality test
in determining whether the violation of rights by section 173 of the
Constitution was justifiable without relying expressly on section 36(1) or
36(2).217 Likewise, the minority (per Moseneke DCJ, Mokgoro J
concurring) drew a distinction between the limitation of a right by ‘relying
only on the power to regulate procedure under s 173 [of the Constitution]’
and the limitation of rights by relying ‘on a law of general application that
confers a discretion to limit an entrenched right’.218 They implied that the
test to be applied was different from that in section 36. However, the Court
went on to insist that ‘at a bare minimum, the limitation must, in substance,
fall within the bounds imposed by section 36(1)’.219
Then, in Independent Newspapers (Pty) Ltd v Minister for Intelligence
Services (Freedom of Expression Institute as Amicus Curiae) In re:
Masetlha v President of the Republic of South Africa and Another, the
Court again (this time per Moseneke DCJ) used section 173 and
proportionality rather than ‘a statute or other law of general application as
the basis for restricting the disclosure of the material’.220
It is not clear what the textual basis for the Court’s proportionality
assessment is. In this regard, Du Plessis and Penfold note:
 [T]he majority used section 173 as the basis for limiting
the right to open justice. It is surprising that Moseneke
DCJ should adopt such a position, given that he appears
previously to have rejected the approach of using
section 173 as a self-standing basis for limiting
fundamental rights [in South African Broadcasting
Corporation] … It seems to us that the application of this
reasoning in Independent Newspapers would mean that a
limitation on the right to open justice, occasioned by a
court directing that certain parts of the record are not to
be made publicly available, is required to pass the
limitations test in section 36(1). This requires the
limitation to be in terms of law of general application,
and to be reasonable and justifiable. We would have
thought that section 173 is capable of fulfilling the law of
general application requirement, with the remaining
question being whether the limitation is reasonable and
justifiable.221
The use of proportionality by the Court in both these cases suggests it is
applying section 36(1). However, it seems unwilling to do so formally. The
difficulty with the Court’s approach is that it grants courts considerable
power to infringe rights under section 173 without comparable protection.
As Yacoob J noted in his dissent in Independent Newspapers, ‘[i]t is
difficult to justify a regime in which a court can limit rights more easily
than a legislature can’.222

SUMMARY

When a person challenges a law on the grounds that it infringes one or more
of the rights guaranteed in the Bill of Rights, a court has to perform two
tasks. The court must first determine whether the law being challenged
limits any of the rights protected by the substantive clauses of the Bill of
Rights. If it does, the court then has to go on to determine whether that
limitation is justifiable. A limitation will be justifiable if it satisfies the
requirements of section 36(1) of the Constitution (the limitation clause).
When it came to interpreting the limitation clause, most commentators
expected the Constitutional Court to follow the sequential structured
approach, in which a series of specific questions are addressed, adopted by
the Canadian Supreme Court in Oakes. In Makwanyane, however, the
Constitutional Court rejected this approach and adopted a singular global
approach in which certain factors are considered. This singular global
approach is usually referred to as a balancing or proportionality test.
Unfortunately, it is not always clear what this balancing or
proportionality test requires or how it drives the limitation enquiry. To make
it simpler to understand this test, we divided the factors listed in
section 36(1) into four different questions. These questions are as follows:
• What is the purpose of the limiting measure? Is it legitimate in an open
and democratic society based on equality, freedom and human dignity?
• What is the relationship between the limiting measure and its stated
purpose? More specifically, are they rationally connected?
• Are there clear, alternative means available that are less restrictive on the
full enjoyment of the right?
• Is the legitimate, rationally based limiting measure a proportionate
limitation on the right in question, taking into account the degree of
infringement, the nature of the right, the breadth of the measure and the
social good it achieves? This is balancing and proportionality proper.
The aim of this reconsideration is not to alter substantively the justification
enquiry. Instead, it is to make proportionality more accessible by providing
a simplified lens through which to view the numerous decisions involving
limitation and to understand the different types of limitation analysis
undertaken by the courts.

1 S 1(c) of the Constitution states that South Africa is a sovereign, democratic state founded on,
inter alia, ‘[the] supremacy of the Constitution and the rule of law’. Further, s 7 states: ‘This
Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all
people in our country and affirms the democratic values of human dignity, equality and
freedom.’
2 S 8(1) of the Constitution states: ‘The Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary and all organs of state.’
3 For example, s 9(4) of the Constitution prohibits horizontal discrimination, stating: ‘No person
may unfairly discriminate directly or indirectly against anyone on one or more [prohibited]
grounds.’
4 For a fairly negative assessment of public support for the Constitutional Court, see Gibson, JL
and Caldeira, GA (2003) Defenders of democracy? Legitimacy, popular acceptance, and the
South African Constitutional Court Journal of Politics 65(1):1–30 at 1. Du Plessis argues that
the Constitutional Court must go a step further by not only engaging with public opinion, but
where necessary changing it by ‘edify[ing] the South African public about their ethical identity
under the Constitution’. See Du Plessis, M (2002) Between apology and utopia: The
Constitutional Court and public opinion South African Journal on Human Rights 18(1):1–40 at
1.
5 See Dworkin, RM (1978) Taking Rights Seriously 184.
6 (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793 (CC) (8 June 1995)
para 129.
7 Even if the test can be conceptually pinned down, it is problematic by the use of language
alone. In Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002]
ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) para 151, Sachs J, for
example, attempts to bring the abstract enquiry down to the ground by noting that ‘the
weighing of the respective interests at stake does not take place on weightless scales of pure
logic pivoted on a friction-free fulcrum of abstract rationality’. This description is not easy to
comprehend.
8 This evolution will form the basis of the reconsideration of the notion of proportionality below.
9 In De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others
2003 (3) SA 389 (W) 425G, the High Court noted:
I reiterate that the rights contained in the Bill of Rights are not absolute. Rights
have to be exercised with due regard and respect for the rights of others. Organised
society can only operate on the basis of rights being exercised harmoniously with
the rights of others. Of course, the rights exercised by an individual may come into
conflict with the rights exercised by another, and where rights come into conflict, a
balancing process is required.
10 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA
391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 100.
11 See Makwanyane para 104.
12 Art 1 of the Canadian Charter of Rights and Freedoms in Part 1 of the Constitution Act (1982)
states: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.’
13 S 33(1) of the interim Constitution. Regarding the evolution of s 33(1), Woolman and Botha
note: ‘The basic form of the interim Constitution’s limitations clause did not change over the
course of the 12 reports generated by the Multi-Party Negotiating Forum’s Technical
Committee on Fundamental Rights. In its second report, the Committee identified what it
believed to be the primary features of a limitations clause: (a) a ‘law of general application’
threshold test; (b) a reasonableness requirement; (c) a necessity requirement; (d) a ‘justifiable
in a free, open and democratic society’ requirement; (e) a proportionality or balancing
approach; (f) a ‘non-derogation from the essential content of the right’ requirement; and (g) an
immunisation of select rights from any limitation at all. With the exception of the last
characteristic, all of these attributes appear in one form or another in the 12th and final version
of the interim Constitution’s limitations clause.’ See Woolman, S and Botha, H ‘Limitation’ in
 Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service
5 34.10–34.11. For a discussion of the limitations clause in s 33 of the interim Constitution, see
White, J ‘Constitutional litigation and interpretation, and fundamental rights’ (1994) Juta’s
Annual Survey of South African Law 35–66.
14 Entrenched rights were listed in s 33(1) (b)(aa) and (bb) of the interim Constitution as ss 10,
11, 12, 14(1), 21, 25 or 30(1)(d), 30(1)(e) or 30(2) and ss 15, 16, 17, 18, 23, or 24 in so far as
such rights relate to free and fair political activity.
15 For a more detailed discussion of the evolution of s 33(1), see Woolman and Botha (2013).
16 In Makwanyane para 108, the German test was described by the Constitutional Court as
follows:
It has regard to the purpose of the limiting legislation, whether the legislation in
fact achieves that purpose, whether it is necessary therefor, and whether a proper
balance has been achieved between the value enhanced by the limitation, and the
fundamental right that has been limited.
17 [1986] 1 SCR 103. This judgment was also favourably quoted in Makwanyane para 105.
18 R v Oakes [1986] 1 SCR 103 para 74.
19 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995).
20 Makwanyane para 104.
21 Makwanyane para 104. The reformulation was, it must be noted, welcomed by some
commentators at the time. See Bronstein, V and Robinson, K ‘Constitutional jurisprudence and
the Bill of Rights’ (1996) Juta’s Annual Survey of South African Law 53: ‘Here the court
acknowledges one’s intuitive sense that the effect of the proportionality test used in analysing
rights and their limitations does not depend on the wording of the limitation clause in an
individual case. The best interpretation of the statement quoted above is that the rights in the
Bill of Rights are not weakened by the omission of the word “necessary”. The implication is
that it does not make a difference whether the operative words in the limitation clause are
“necessary” or “reasonable and justifiable”. This pronouncement should be interpretively
important in the future.’ Such an early departure from the wording of s 36 – by academics no
less – was a sign of things to come.
22 Makwanyane para 104.
23 In doing so, the Constitutional Court took its lead from the German Constitutional Court
which, Chaskalson J remarked in Makwanyane para 108, ‘also has a provision similar to
section 33(1)(b) of our Constitution, but the Court apparently avoids making use of this
provision, preferring to deal with extreme limitations of rights through the proportionality test’.
24 Under the text of the interim Constitution’s limitation clause, courts must first ask if a
limitation is reasonable. Only if it is deemed to be reasonable, will they move on to the second
question as to whether it is justifiable, at which point the courts would be required to balance
competing interests.
25 At the time of its drafting, the exact phraseology was contested and confused. As noted at the
time: ‘While the section in the Working Draft on the limitation of rights was replete with
alternative constructions providing that a right may be limited only to the extent that it is
“reasonable/reasonable and justifiable/reasonable and necessary/necessary/justifiable” (s 35(1)
(a), Working Draft), in the end the Constitutional Assembly settled for the reasonable and
justifiable formulation [s 36(1) in the final Constitution] despite some rather puerile debate in
which it seemed as if the constitutional experts did not really seem to have an opinion as to
whether there was any significant point to the different formulations. This particular debate
created some confusion in a public already well rehearsed in the promise that the “draft text
 has been written in plain language so that everyone can read and understand it”.’ See Annual
Survey of South African Law.
26 In Makwanyane para 104, the Court also introduced factors to be considered in the balancing
process, noting: ‘In the balancing process the relevant considerations will include the nature of
the right that is limited and its importance to an open and democratic society based on freedom
and equality; the purpose for which the right is limited and the importance of that purpose to
such a society; the extent of the limitation, its efficacy and, particularly where the limitation
has to be necessary, whether the desired ends could reasonably be achieved through other
means less damaging to the right in question.’
27 While these factors added some substance to an otherwise fairly abstract process, this value
was offset by the exclusion of two features of s 33 of the interim Constitution that could
potentially have narrowed down the ‘universe of possibility’ presented by the open-ended
nature of the balancing test. The first was the requirement in s 33(1)(b) of the interim
Constitution that limitations must not ‘negate the essential content of the right in question’. The
second was the requirement that, in respect of certain entrenched rights, the limitation must
pass the additional test of being necessary. See Woolman, S ‘Application’ in Woolman and
Bishop (2013) 31.145. While these will no doubt have presented their own problems, they
would have brought some clarity to the process of limiting rights. Notably, there was an
objection raised in the First Certification judgment regarding the omission of ‘necessary’ but
that was quickly dismissed. See Certification of the Constitution of the Republic of South
Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253
(CC) (6 September 1996) para 90.
28 Lenta, P (2001) Just gaming? The case for postmodernism in South African legal theory South
African Journal on Human Rights 17(2):173–209 at 175–6.
29 See, for example, the equality test in Harksen v Lane NO and Others (CCT9/97) [1997] ZACC
12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997).
30 Roux, T (2007) Tactical adjudication: How the Constitutional Court of South Africa survived
its first decade 29, available at
http://www.saifac.org.za/docs/2007/Tactical%20Adjudication.pdf.
31 Roux (2007) 30.
32 Roux (2007) 30.
33 Roux (2007) 30.
34 Roux, T (2009) Principle and pragmatism on the Constitutional Court of South Africa
International Journal of Constitutional Law 7(1):106–38 at 108.
35 Roux (2009) 135.
36 Roux (2009) 135.
37 (CCT19/01) [2002] ZACC 5; 2002 (4) SA 768; 2002 (7) BCLR 702 (16 May 2002).
38 Roux (2009) 134–5.
39 First National Bank para 100.
40 Roux (2009) 136.
41 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 21. Kentridge AJ added: ‘First,
has there been a contravention of a guaranteed right? If so, is it justified under the limitation
clause?’ See also S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995
(7) BCLR 861 (CC) (9 June 1995) para 54; Makwanyane paras 100–02, 208. However, Sachs J
emerged in opposition to this, noting in Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer Port Elizabeth Prison and Others (CCT19/94,
CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631 (22 September 1995)
 para 46 that ‘faithfulness to the Constitution is best achieved by locating the two-stage
balancing process within a holistic, value-based and case-oriented framework’.
42 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7;
1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 18.
43 (CCT28/01) [2002] ZACC 6; 2002 (4) SA 613; 2002 (7) BCLR 663 (21 May 2002) paras 26–
7.
44 (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449 (14 October 1998)
para 27: ‘For the purposes of this judgment, I shall adopt the approach most favourable to the
appellant and assume without deciding that appellant’s religious rights under sections 15 and
31(1) are both in issue. I shall also assume, again without deciding, that corporal punishment as
practised by the appellant’s members is not “inconsistent with any provision of the Bill of
Rights” as contemplated by section 31(2). I assume therefore that section 10 of the Schools Act
limits the parents’ religious rights both under section 31 and section 15.’
45 Veldman v Director of Public Prosecutions (Witwatersrand Local Division) (CCT19/05) [2005]
ZACC 22; 2007 (3) SA 210 (CC); 2007 (8) BCLR 827 (CC) (5 December 2005).
46 Walters paras 26–7.
47 See Beinash and Another v Ernst & Young and Others (CCT12/98) [1998] ZACC 19; 1999 (2)
SA 91; 1999 (2) BCLR 125 (2 December 1998).
48 In Mistry v Interim National Medical and Dental Council and Others (CCT13/97) [1998]
ZACC 10; 1998 (4) SA 1127; 1998 (7) BCLR 880 (29 May 1998) para 28, Sachs J found the
periodic inspection of health professionals’ business premises would have ‘entailed only the
most minimal and easily justifiable invasions of privacy, if they had qualified as invasions of
privacy at all’ (our emphasis). This approach was followed by Ngcobo J in S v Jordan and
Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae
(CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002)
paras 28–9. Ngcobo J held: ‘…even if the right to privacy is implicated, [h]aving regard to the
legitimate State interest in proscribing prostitution and brothel-keeping, viewed against the
scope of the limitation on the right of the prostitute and brothel-keeper to earn a living, I
conclude that if there be a limitation of the right to privacy, the limitation is justified’. See
Woolman and Botha (2013) 34.4, fn1. See South African Broadcasting Corporation Limited v
National Director of Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1)
SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006).
49 See Woolman and Botha (2013) 34.17–34.18.
50 Walters para 26.
51 As Woolman and Botha note: ‘For each right there are specific values that can be said to have
led to its constitutionalisation.’ As a result, the ‘specific values that animate each right’ will
play particular roles in interpreting those rights. See Woolman and Botha (2013) 34.17.
52 In Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR
449; 1996 (2) SA 751 (27 March 1996) para 79, Ackermann J noted in the context of the right
to privacy:
The two-stage approach requires, as the first step, a definition of the scope of the
relevant right. At this stage already … it is necessary to recognize that the content
of the right is crystallized by mutual limitation. Its scope is already delimited by the
rights of the community as a whole (including its members).
53 See South African National Defence Union paras 25–7 where O’Regan J considered the
recommendations and conventions of the International Labour Organization in setting out the
content of the right to work.
54 Zuma para 21. Further, in Makwanyane para 100: ‘Our Constitution … calls for a “two-step”
approach, in which a broad rather than a narrow interpretation is given to the fundamental
rights enshrined in Chapter 3 and limitations have to be justified through the application of
section 33.’
55 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003).
56 De Reuck para 48.
57 De Reuck para 48.
58 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).
59 New National Party para 15.
60 New National Party para 19.
61 New National Party para 24.
62 Roux (2009) 127. See, however, the dissenting opinion of O’Regan J.
63 Williams para 21.
64 (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 67.
65 Magajane v Chairperson, North West Gambling Board (CCT49/05) [2006] ZACC 8; 2006 (10)
BCLR 1133 (CC); 2006 (5) SA 250; 2006 (2) SACR 447 (8 June 2006) para 59 fn 73.
66 In Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01)
[2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002) para 30:
How is section 16(2) to be interpreted? The words ‘the right in subsection (1) does
not extend to …’ imply that the categories of expression enumerated in
section 16(2) are not to be regarded as constitutionally protected speech.
Section 16(2) therefore defines the boundary beyond which the right to freedom of
expression does not extend. In that sense, the subsection is definitional. Implicit in
its provisions is an acknowledgment that certain expression does not deserve
constitutional protection because, among other things, it has the potential to
impinge adversely on the dignity of others and cause harm. Our Constitution is
founded on the principles of dignity, equal worth and freedom, and these objectives
should be given effect to.
67 See further Zealand v Minister for Justice and Constitutional Development and Another
(CCT54/07) [2008] ZACC 3; 2008 (6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); 2008 (4) SA
458 (CC) (11 March 2008) para 34 (right to freedom and security).
68 Walters paras 26–7.
69 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
70 Jordan para 80–1. Sachs and O’Regan JJ later qualified their finding by noting at para 86 that
the limiting measure did ‘not reach into the core of privacy, but only [touched] its penumbra’.
71 S 36(1) of the Constitution.
72 S 36(1) of the Constitution.
73 Woolman and Botha (2013) 34.48.
74 Woolman and Botha (2013) 34.48.
75 The Court has not yet considered the relationship that must exist between the law and the
limiting measure, and more specifically what the phrase ‘in terms of’ means.
76 The Electoral Act 73 of 1998 – which governed the Commission’s operation – made no
provision for the disqualification of voters.
77 See Woolman and Botha (2013) 34.34 fn 2.
78 See Woolman and Botha (2013) 34.52 fn 1.
79 See Woolman and Botha (2013) 34.52 fn 2.
80 Larbi-Odam and Others v Member of the Executive Council for Education (North-West
Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745
(26 November 1997) para 27.
81 Du Toit v Minister of Transport (CCT22/04) [2005] ZACC 9; 2005 (11) BCLR 1053 (CC);
2006 (1) SA 297 (CC) (8 September 2005).
82 Sonderup v Tondelli and Another (CCT53/00) [2000] ZACC 26; 2001 (2) BCLR 152; 2001 (1)
SA 1171 (4 December 2000).
83 Ingledew v Financial Services Board (CCT6/02) [2003] ZACC 8; 2003 (8) BCLR 825; 2003
(4) SA 584 (CC) (13 May 2003) para 19.
84 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997).
85 Hugo para 96.
86 Hugo para 76 fn 7.
87 Hugo para 102. In doing so she relied, inter alia, on the decision of the European Court of
Human Rights in Sunday Times v the United Kingdom (1979–80) 2 EHRR 245 Eur Crt of HR
1979-04-26 para 49 where it noted:
In the Court’s opinion, the following are two of the requirements that flow from the
expression “prescribed by law”. First, the law must be adequately accessible: the
citizen must be able to have an indication that is adequate in the circumstances of
the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a
“law” unless it is formulated with sufficient precision to enable the citizen to
regulate his conduct: he must be able – if need be with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the consequences which
a given action may entail.
88 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 47.
89 Woolman and Botha (2013) 34.61.
90 However, Woolman and Botha suggest that the movement should be the other way, in other
words, content-specific questions should be considered under the rubric of law of general
application rather than during the justification stage. See Woolman and Botha (2013) 34.62–
34.63.
91 S 33(1) of the interim Constitution provided that ‘[t]he rights entrenched in this Chapter may
be limited by law of general application, provided that such limitation (a) shall be permissible
only to the extent that it is (i) reasonable; and (ii) justifiable in an open and democratic society
based on freedom and equality; and (b) shall not negate the essential content of the right in
question …’ Further, it provided that the limitation of certain entrenched rights must also be
necessary.
92 Paraphrased by Woolman and Botha as ‘first, whether the limitation serves a sufficiently
important objective; second, whether the limitation is rationally connected to the said
objective; third, whether the limitation impairs the right as little as possible; and fourth,
whether the actual benefits of the limitation are proportionate to its deleterious consequences
for the rights-holder’. See Woolman, S and Botha, H ‘Limitations: Shared constitutional
interpretation, an appropriate normative framework and hard choices’ in Woolman, S and
Bishop, M (eds) (2008) Constitutional Conversations 155.
93 There is a difference: the Makwanyane formulation does not separate them but has them
considered globally with proportionality as a device. Factors do not suffice as they are all to be
considered under proportionality and often conflate threshold and proportionality questions.
We might note a difference between factors that may be considered and threshold questions
that must be met.
94 As discussed further below, the importance of the purpose of the limitation factor is made
up of two sub-parts: first, the purpose of the limitation and second, its importance. The latter is
relevant to the limiting measure side of the proportionality scale.
95 The relationship between the limitation and its purpose is similarly complex. At this stage
of the justification enquiry, the relationship requires at a minimum a rational connection
between the purpose and the limitation, what courts have labelled the rational connection
requirement. Labelling them as factors is, in a sense, misleading as it gives them an optional
feel, whereas unlike other section 36 factors, these threshold questions are imperative to any
limitations enquiry.
96 Iles, K (2007) A fresh look at limitations: Unpacking section 36 South African Journal on
Human Rights 23(1):68–92 at 68.
97 We could consider steps one and two – which deal with the internal aspects of the limiting
measure – as addressing the question of reasonableness, while the latter two – which address
the relationship between the limiting measure and externalities – address the issue of
justifiability.
98 As Sachs J noted in Prince para 155: ‘Limitations analysis under our Constitution is based not
on formal or categorical reasoning but on processes of balancing and proportionality as
required by section 36.’
99 These remaining section 36 factors are also, broadly speaking, captured in stages three and four
of the Oakes formulation. The third step in Oakes – whether the limitation impairs the right as
little as possible – is similar to the less restrictive means factor in s 36(1)(e), but is perhaps
more appropriately compared to the phrase ‘to the extent that’. The fourth and final step under
the Oakes formulation – whether the actual benefits of the limitation are proportionate to its
deleterious consequences for the rights-holder – is proportionality in a limited sense. On this
score, section 36 is more comprehensive. What remains of section 36 factors collectively ask if
the legitimate, rationally based measure constitutes a proportionate limitation on the right in
question, taking into account the degree of infringement, the nature of the right, the breadth of
the measure and the social good it achieves.
100 With apologies to Iles who used the phrase in respect of his scaled-down approach to s 36. Iles
(2007) 68.
101 It was never intended that the section 36 factors would be applied sequentially. Nor, for that
matter, are they logically sequenced although the Constitutional Court has remarkably on a few
occasions applied them mechanically (See Magajane).
102 There have been occasions when certain judges have recognised the intuitive difference
between the section 36 factors and tried to re-introduce some structure into the limitation
clause by applying ‘reasonable and justifiable’ separately. However, these are few and are
between. In his dissenting judgment in Prince para 81, Ngocbo J held:
I accept that the goal of the impugned provisions is to prevent the abuse of
dependence-producing drugs and trafficking in those drugs. I also accept that it is a
legitimate goal. The question is whether the means employed to achieve that goal
are reasonable. In my view, they are not. The fundamental reason why they are not
is because they are overbroad … On that score they are unreasonable and they fall
at the first hurdle. This renders it unnecessary to consider whether they are
justifiable.
Similarly, in Engelbrecht v Road Accident Fund and Another (CCT57/06) [2007] ZACC 1;
2007 (6) SA 96 (CC); 2007 (5) BCLR 457 (CC) (6 March 2007), Kondile AJ employed
reasonable and justifiable disjunctively. Having found that the measure ‘[did] not meet the
threshold test of reasonableness’ (para 40), he went on to ‘consider whether the regulation is
 justifiable, on the assumption that it may still be necessary, despite the manifest
unreasonableness referred to above’ (para 41), citing Makwanyane paras 209–10.
103 In S v Bhulwana, S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388;
1995 (12) BCLR 1579 (29 November 1995) para 24, O’Regan J held:
In my view, section 21(1)(a)(i) of the Act cannot be justified in terms of section 33(1)
of the Constitution. Although the need to suppress illicit drug trafficking is an
urgent and pressing one, it is not clear how, if at all, the presumption furthers such
an objective. In addition, there appears to be no logical connection between the fact
proved (possession of 115g) and the fact presumed (dealing). On the other hand, the
presumption gives rise to an infringement of the right entrenched in section 25(3)
(c), which is a pillar of our system of criminal justice. Section 21(1)(a)(i) of the Act
is an unconstitutional infringement of the right entrenched in section 25(3)(c) which
is not reasonable, justifiable or necessary as contemplated by section 33.
104 As Woolman and Botha note: ‘Prior to the judgment in Makwanyane, it was widely expected
that the Court would model its analysis of the reasonableness and justifiability of fundamental-
rights limitations on the approach adopted by the Canadian Supreme Court in R v Oakes.
However, the approach of the Makwanyane Court represents a significant departure from the
Oakes test.’ See Woolman and Botha (2008) 155.
105 Makwanyane paras 145–6.
106 Woolman and Botha (2008) 161.
107 Woolman and Botha (2008) 159.
108 Woolman and Botha (2008) 160.
109 Woolman and Botha (2008) 161.
110 Woolman and Botha (2008) 161.
111 S 36(1)(b) of the Constitution.
112 Jordan para 15.
113 See, for example, South African National Defence Union where the aim was to comply with
s 200(1) of the 1996 Constitution which provides that the South African National Defence
Force (SANDF) must be structured and managed as a disciplined military force.
114 South African National Defence Union para 11.
115 Bhulwana para 20; Prince para 35.
116 Christian Education paras 39–41.
117 Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25;
2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004) para 37.
118 Magajane para 81.
119 Islamic Unity Convention para 45.
120 Jordan para 15.
121 Moise v Greater Germiston Transitional Local Council (CCT 54/00) [2001] ZACC 21; 2001
(4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001).
122 Johncom Media Investments Limited v M and Others (CCT 08/08) [2009] ZACC 5; 2009 (4)
SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009) para 29.
123 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) bclr 1517 (9 October 1998) para 37.
Although not all were framed as section 36 enquiries, the same logic has been persuasive in a
number of subsequent cases that purged the discriminatory preferences against individuals in
homosexual relationships from our law. See Du Toit and Another v Minister of Welfare and
Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006;
2003 (2) SA 198 (CC) (10 September 2002); Satchwell v President of the Republic of South
Africa and Another (CCT48/02) [2003] ZACC 2; 2003 (4) SA 266 (CC); 2004 (1) BCLR 1
 (CC) (17 March 2003); J and Another v Director General, Department of Home Affairs and
Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC) (28 March
2003); Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC
19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).
124 Makwanyane para 131.
125 If the court is satisfied, then it will turn its attention to considering the limiting measure in
more detail, as well as any other less restrictive means of achieving that end.
126 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
127 O’Regan J held at para 35 in South African National Defence Union:
There can be no doubt of the constitutional imperative of maintaining a disciplined
and effective Defence Force. I am not persuaded, however, that permitting members
of the Permanent Force to join a trade union, no matter how its activities are
circumscribed, will undermine the discipline and efficiency of the Defence Force.
Indeed, it may well be that in permitting members to join trade unions and in
establishing proper channels for grievances and complaints, discipline may be
enhanced rather than diminished. Whether this proves to be the case will depend,
of course, on a variety of factors including the nature of the grievance procedures
established, the permitted activities of trade unions in the Defence Force, the nature
of the grievances themselves and the attitudes and conduct of those involved.
128 (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579
(29 November 1995) para 24.
129 S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001); Lesapo v North West Agricultural Bank and Another (CCT23/99) [1999] ZACC
16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999) para 26.
130 This has not prevented the Constitutional Court from doing so however.
131 Although this factor is sequentially last, it makes little sense to consider it after making the
proposed means run the gauntlet of the proportionality enquiry although the Constitutional
Court has done so on occasion.
132 (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002)
para 114.
133 As was noted by O’Regan J in South African National Defence Union para 18, ‘the use of the
term “overbreadth” can be confusing, particularly as the phrase has different connotations in
different constitutional contexts’, adding ‘[c]are should therefore be taken when employing the
term’.
134 Although the Constitutional Court has equated this with the less restrictive means requirement,
for the reasons set out above, this is better placed under the notion of proportionality.
135 (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995)
para 62.
136 See Zuma; Bhulwana; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996
(3) BCLR 293; 1996 (2) SA 464 (9 February 1996); S v Julies (CCT7/96) [1996] ZACC 14;
1996 (7) BCLR 899; 1996 (4) SA 313 (11 June 1996); S v Coetzee and Others (CCT50/95)
[1997] ZACC 2; 1997 (4) BCLR 437; 1997 (3) SA 527 (6 March 1997); S v Ntsele (CCT25/97)
[1997] ZACC 14; 1997 (11) BCLR 1543 (14 October 1997); S v Mello (CCT5/98) [1998]
ZACC 7; 1998 (3) SA 712; 1998 (7) BCLR 908 (28 May 1998); S v Singo (CCT49/01) [2002]
ZACC 10; 2002 (4) SA 858; 2002 (8) BCLR 793 (12 June 2002).
137 Walters paras 26–7.
138 Notably, under the interim Constitution there was a hierarchy of rights. This is because s 33
listed a number of entrenched rights which were harder to limit, but this feature was dropped
 from the final Constitution.
139 Recently, in Johncom para 19, the Constitutional Court categorically stated that the
Constitution does not ‘accord hierarchical precedence to any particular right entrenched in
the Bill of Rights over other rights referred to therein’ (our emphasis).
140 National Coalition for Gay and Lesbian Equality para 34.
141 Makwanyane para 144. Although Makwanyane was decided under the interim Constitution, no
reference was made to the formal hierarchy of rights by the Court when it described these
rights as ‘the most important of all human rights’.
142 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October
2004) para 71.
143 As Moseneke J held in Laugh It Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International and Another (CCT42/04) [2005] ZACC 7; 2006 (1)
SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005) para 47: ‘Plainly, the right to free
expression in our Constitution is neither paramount over other guaranteed rights nor limitless.’
As Kriegler J held in S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC);
2001 (5) BCLR 449 (CC) (11 April 2001) para 41: ‘With us it is not a pre-eminent freedom
ranking above all others. It is not even an unqualified right.’
144 See Bernstein para 79.
145 Jordan paras 80 and 86.
146 S 36(1)(c) of the Constitution.
147 See Woolman, S (2007) The amazing, vanishing Bill of Rights South African Law Journal
124(4):762–94 at 762.
148 As an aside, there is some debate over whether some rights have an unlimitable core. In
Williams paras 55–6, the Constitutional Court raised but left open the question whether there
are rights that, despite the apparent universality of the limitation clause, cannot be limited.
Similarly, in Bernstein para 77, Ackermann J spoke of ‘a final untouchable sphere of human
freedom that is beyond interference from any public authority. So much so that, in regard to
this most intimate core of privacy, no justifiable limitation thereof can take place’.
149 Du Plessis, M and Penfold, G ‘Bill of Rights jurisprudence: Operational provisions of the Bill
of Rights’ (2008) Juta’s Annual Survey of South African Law 50.
150 (CCT25/99) [2000] ZACC 5; 2000 (3) SA 1; 2000 (5) BCLR 491 (14 April 2000) para 32. The
same was held to be the case under the interim Constitution. In Bhulwana; Gwadiso para 18,
the Court held: ‘[T]he court places the purpose, effects and importance of the infringing
legislation on one side of the scales and the nature and effect of the infringement caused by the
legislation on the other. The more substantial the inroad into fundamental rights, the more
persuasive the grounds of justification must be.’
151 Christian Education para 43. For example, in Islamic Unity Convention paras 42–3, the
Constitutional Court considered whether a legislative provision which prohibited the
broadcasting of any material ‘likely to prejudice relations between sections of the population’
was a justifiable limitation on the right to freedom of expression, among others. In its defence
of the provision, the amicus curiae (Jewish Board of Deputies) raised a number of arguments
that invoked interests that were protected by the provision, namely that ‘the interests of human
dignity and equality, which are founding values of the Constitution, and national unity, which
is an important and legitimate state objective’.
152 Jordan para 90. Concluding at para 91:
[A]lthough nearly all open and democratic societies condemn commercialised sex,
they differ vastly in the way in which they regulate it. These are matters
 appropriately left to deliberation by the democratically elected bodies of each
country.
153 In National Coalition for Gay and Lesbian Equality para 57, Ackermann J noted:
A number of open and democratic societies have turned their backs on the
criminalisation of sodomy in private between adult consenting males, despite the
fact that sexual orientation is not expressly protected in the equality provisions of
their constitutions. Their reasons for doing so … fortify the conclusion which I have
reached that the limitation in question in our law regarding such criminalisation
cannot be justified under section 36(1) of the 1996 Constitution.
154 See Prince paras 119–27 where the majority undertook a thorough review of how foreign
courts have dealt with the question of allowing special exemptions for the use of prohibited
substances.
155 This is proportionality with a capital ‘P’.
156 These are often employed in concert.
157 Woolman and Botha (2008) 159.
158 De Reuck para 59.
159 De Reuck para 59.
160 De Reuck para 67.
161 De Reuck para 70.
162 Woolman and Botha (2008) 159–60.
163 (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002).
164 Schedule 1 Clause 2(a) of the Code of Conduct for Broadcasting Services in the Independent
Broadcasting Authority Act 153 of 1993.
165 Islamic Unity Convention para 49. The Court also held the provision to be overbroad.
166 Act 18 of 1973.
167 (CCT 26/01) [2001] ZACC 4; 2001 (11) BCLR 1175 (8 October 2001).
168 Potgieter para 7.
169 Islamic Unity Convention para 49.
170 S 126B(4) of the Defence Act 44 of 1957.
171 South African National Defence Union para 11.
172 (CCT19/94, CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631
(22 September 1995) paras 13–4.
173 Christian Education para 35. Further, in MEC for Education: Kwazulu-Natal and Others v
Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC)
(5 October 2007) para 73, Langa CJ noted the following regarding the concept:
At its core is the notion that sometimes the community, whether it is the State, an
employer or a school, must take positive measures and possibly incur additional
hardship or expense in order to allow all people to participate and enjoy their rights
equally. It ensures that we do not relegate people to the margins of society because
they do not and cannot conform to certain social norms.
174 Christian Education para 32.
175 Prince para 94.
176 As noted above, although the Constitutional Court has equated this with the less restrictive
means requirement, for the reasons set out above, this is better placed under the notion of
proportionality.
177 Prince para 139: ‘The use made of cannabis by Rastafari cannot in the circumstances be
sanctioned without impairing the state’s ability to enforce its legislation in the interests of the
public at large and to honour its international obligation to do so. The failure to make provision
 for an exemption in respect of the possession and use of cannabis by Rastafari is thus
reasonable and justifiable under our Constitution.’
178 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October
2007).
179 Pillay para 79.
180 Pillay para 85.
181 Pillay para 112.
182 Pillay para 162. It was a hollow victory in light of the fact that the student had matriculated by
the time judgment was handed down.
183 Prince para 156.
184 Act 4 of 2000.
185 Makwanyane para 102.
186 In Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of
Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004
(5) BCLR 445 (CC) (3 March 2004) para 34, the Court noted: ‘It is not the conventional onus
of proof as it is understood in civil and criminal trials where disputes of fact have to be
resolved. It is rather a burden to justify a limitation where that becomes an issue in a section 36
analysis.’
187 (CCT 54/00) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001)
para 18.
188 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2004) para 36.
189 For example, in S v Steyn (CCT19/00) [2000] ZACC 24; 2001 (1) BCLR 52; 2001 (1) SA
1146; 2001 (1) SACR 16 (29 November 2000), the Court found that the imposition of a leave
to appeal requirement on all criminal appeals from the magistrates’ courts violated the right to
appeal contained in s 35 of the Constitution. The Court was then faced with the difficulty that
the State had made little to no attempt at a justification argument. In finding that the measure
had failed the justification test, the court held at para 32:
The State has failed to adduce any evidence on the clogging of appeal rolls, the
impact of unmeritorious appeals, and the existence of any resource-related
problems or other relevant considerations that could justify the existence of the
procedure introduced by ss 309B and 309C. Clearly it was incumbent on the State
to establish factors that justify these limitations of the right of appeal … In the
present case the State produced no such data, nor did it refer to any objectively
determinable factors that could be considered in justification of the challenged
provisions.
190 Currie, I and De Waal, J (2005) The Bill of Rights Handbook 5th ed 237–38.
191 (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345; 2003 (4) BCLR 357 (11 March 2003) para 20.
192 (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009)
para 25.
193 (CCT98/08) [2009] ZACC 18; 2009 (2) SACR 477 (CC); 2009 (6) SA 632 (CC); 2009 (11)
BCLR 1105 (CC) (15 July 2009) para 63.
194 See chs 12–16.
195 S 9(3) states: ‘The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language
and birth.’ S 9(4) states: ‘No person may unfairly discriminate directly or indirectly against
 anyone on one or more grounds in terms of subsection (3). National legislation must be enacted
to prevent or prohibit unfair discrimination.’
196 (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997)
para 48. See also Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (6)
BCLR 759; 1997 (3) SA 1012 (18 April 1997).
197 In Hugo paras 41–3, the Constitutional Court held that:
Each case, therefore, will require a careful and thorough understanding of the
impact of the discriminatory action upon the particular people concerned to
determine whether its overall impact is one which furthers the constitutional goal of
equality or not. A classification which is unfair in one context may not necessarily
be unfair in a different context … To determine whether that impact was unfair it is
necessary to look not only at the group who has been disadvantaged but at the
nature of the power in terms of which the discrimination was effected and also at
the nature of the interests which have been affected by the discrimination.
198 Woolman and Botha (2013) 34.6. Similarly, Currie and De Waal (2005) 237–8:
In the case of the right to equality it is difficult to apply the usual two-stage analysis
of a right and its limitation. Indeed, it is far from clear whether s 36 has any
meaningful application to s 9. This is because it is, for instance, difficult to see how
any discrimination that has already been characterized as “unfair” (because it is
based on attributes and characteristics which have the potential to impair the
fundamental human dignity of persons as human beings) can ever be acceptable in
an open and democratic society based on human dignity, freedom and equality.
Similarly, it is difficult to see how one could justify as “reasonable” a law which
differentiates for reasons not rationally related to a legitimate government purpose,
and which is therefore arbitrary.
199 In Bhe para 68 the Constitutional Court concluded that it was unfair discrimination but still
applied section 36: ‘The only question that remains to be considered is whether the
discrimination occasioned by section 23 and its regulations is capable of justification in terms
of section 36 of our Constitution.’ See also Geldenhuys v National Director of Public
Prosecutions and Others (CCT 26/08) [2008] ZACC 21; 2009 (2) SA 310 (CC); 2009 (1)
SACR 231 (CC); 2009 (5) BCLR 435 (CC) (26 November 2008). The same approach was
adopted under the interim Constitution. See Larbi-Odam para 18.
200 In First National Bank paras 47–70, Ackermann J set out the operation of s 25 in detail.
201 First National Bank para 100.
202 First National Bank para 110: ‘It might be contended that once the deprivation has been
adjudged to be arbitrary, no scope remains for justification under section 36.’
203 First National Bank para 110.
204 First National Bank para 110.
205 The First National Bank para 100 test includes as a consideration: ‘Depending on such
interplay between variable means and ends, the nature of the property in question and the
extent of its deprivation, there may be circumstances when sufficient reason is established by,
in effect, no more than a mere rational relationship between means and ends; in others this
might only be established by a proportionality evaluation closer to that required by
section 36(1) of the Constitution. (our emphasis)’
206 Woolman and Botha (2008) 149.
207 Pillay para 40.
208 Pillay para 40.
209 Act 3 of 2000.
210 S 4 of the PAJA.
211 Act 66 of 1995.
212 (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002)
para 14.
213 (CCT 32/07) [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) (6 December
2007) para 76.
214 The relevant part of this provision reads: ‘In order to advance such reconciliation and
reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated
with political objectives and committed in the course of the conflicts of the past.’
215 (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996) para 38:
In the result I am satisfied that section 20(7) [of the Promotion of National Unity
and Reconciliation Act 34 of 1995] is not open to constitutional challenge on the
ground that it invades the right of a victim or his or her dependant to recover
damages from a wrongdoer for unlawful acts perpetrated during the conflicts of the
past. If there is any such invasion it is authorised and contemplated by the relevant
parts of the epilogue.
216 S 173 of the Constitution states: ‘The Constitutional Court, Supreme Court of Appeal and High
Courts have the inherent power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice.’
217 (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL
18339 (CC) (21 September 2006) para 42. The majority concluded at para 46 that, in the
circumstances of the case, the SCA had struck ‘an appropriate relationship of proportionality
between the right to freedom of expression and the court’s obligation to ensure that the
proceedings before it are fair’.
218 South African Broadcasting Corporation para 92.
219 South African Broadcasting Corporation para 92.
220 (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)
para 55.
221 Du Plessis and Penfold (2008) 70–1.
222 Independent Newspapers para 83.
Constitutional remedies

11.1 Introduction
11.2 Declarations of invalidity
11.2.1 Introduction
11.2.2 Reading down
11.2.3 Severance
11.2.4 Notional severance
11.2.5 Reading in
11.3 Limiting the retrospective effect of an order of invalidity
11.4 Suspension of an order of invalidity
11.5 A declaration of rights
11.6 An interdict
11.7 Constitutional damages
11.8 Meaningful engagement
Summary

11.1 Introduction
One of the most important characteristics of a judicially enforceable
Constitution is that courts are empowered to hand down orders that address
infringements of the Constitution in a manner that assists litigants and those
in a similar situation to the litigants. In those cases where a court has found
that law or conduct unjustifiably infringes a fundamental right or does not
promote the values in the Bill of Rights, it therefore has to decide what the
most appropriate remedy would be to resolve the problem. It is important
when litigating constitutional matters that litigants know from the outset
what remedy they want the court to provide. Courts are reluctant to grant
remedies that are impractical, that would not cure the constitutional defect
or that would tread too drastically on the powers of the other branches of
government. Most of this chapter deals with the ways in which the courts
try to limit the impact of declaring law or conduct unconstitutional.
A remedy is defined as ‘a process of legal redress embracing all the legal
procedures that a person has to follow to redress the violation of their
rights’.1 It can also be understood in a narrower sense of the order made by
a court in response to a proven violation of a person’s rights.2
As these definitions indicate, a remedy is the mechanism used to repair
an infringement of rights once a court has interpreted the right and found
the conduct of a government department or a private individual to be
lacking. To a significant extent, therefore, the enforcement of rights and
remedies determines what a right means in practice in the lives of the
parties.3
Given its function as a mechanism used to repair an infringement of
rights, it is not surprising that an important principle of the law of
constitutional remedies is that successful litigants should obtain the relief
they seek to vindicate their rights. In S v Bhulwana, S v Gwadiso, for
example, the Constitutional Court held that ‘[c]entral to a consideration of
the interests of justice in a particular case is that successful litigants should
obtain the relief they seek’.4 When a court determines what the appropriate
remedy in a case will be, it engages in a profoundly practical exercise. It
has to consider the consequences of granting or not granting a particular
remedy, both for the litigant who brought the case and for the state and
society at large.

CRITICAL THINKING
When relief cannot be afforded to successful
litigants
Although it is generally accepted that a successful litigant
should be afforded the relief he or she seeks, there are
some exceptions to the principle. These exceptions are:
• where the relief cannot properly be tailored by a court 5
• where even though a litigant would otherwise be
successful, other interests or matters preclude an order
in his or her favour 6
• where an order would otherwise produce such disorder
or administrative difficulties that the interests of justice
served by an order in favour of a successful litigant are
outweighed by the social dislocation such an order might
occasion.7
In these circumstances, the broad issue of the
administration of justice is taken into account in the
determination of just and equitable remedies. This means
that the granting of remedies by a court, while guided by
legal principles, is also based partly on pragmatism and
with a keen eye to the potentially disruptive effects of
granting the ‘wrong’ remedy.
These points are clearly illustrated in AllPay
Consolidated Investment Holdings (Pty) Ltd and Others v
CEO of the South African Social Security Agency and
Others.8
In this case the appellant applied for an order setting
aside a multibillion rand tender that had been granted to a
company called Cash Paymaster Services (Pty) Ltd by the
South African Social Security Agency (SASSA). The tender
was for the payment of social grants. The appellant, which
was one of the losing bidders, based its application on the
grounds that the tender process infringed section 217(1) of
the Constitution because it was unfair. Section 217(1)
 provides that ‘when an organ of state … contracts for
goods and services, it must do so in accordance with a
system which is fair, equitable, transparent, competitive
and cost-effective’.
The Supreme Court of Appeal (SCA) rejected the
appellant’s argument and refused to set the tender aside.
In arriving at this conclusion, however, the Court held that
even if the tender process had been unfair it would not
have granted an order setting the tender aside. This is
because such an order would have significantly disrupted
the payment of social grants and this would have had
serious consequences not only for Cash Paymaster
Services itself, which was completely innocent, but also for
the millions of poor South Africans who receive social
grants every month. In so far as the recipients of social
grants are concerned, the Court stated that:
We need no evidence to know the immense disruption that would
be caused, with dire consequences to millions of elderly, children
and the poor, if this contract were to be summarily set aside. The
prospect of that occurring has prompted the Centre for Child Law
to intervene as amicus curiae in the case. We value the contribution
they have made but they had no cause for concern. It is
unthinkable that that should occur.9

The kinds of remedies a court may grant depend on the manner in which the
Bill of Rights applies to a dispute. In this respect a distinction may be
drawn between:
• the direct vertical application of the Bill of Rights
• the direct horizontal application of the Bill of Rights
• the indirect vertical and horizontal application of the Bill of Rights.
In those cases where the Bill of Rights applies directly and vertically,
sections 38 and 172(1) of the Constitution govern the kinds of remedies a
court may grant. In those cases where the Bill of Rights applies directly and
horizontally, sections 8(2) and 8(3) of the Constitution govern the kinds of
remedies a court may grant. In those cases where the Bill of Rights applies
indirectly, section 39(2) of the Constitution governs the kinds of remedies a
court may grant.
This distinction is important because sections 38 and 172(1) of the
Constitution confer on the courts the power to apply and develop unique
constitutional law remedies such as declarations of invalidity, constitutional
damages and meaningful engagement. Sections 8(2), 8(3) and 39(2) of the
Constitution simply provide, however, that the courts must use and develop
the common law and statutory remedies. For the purposes of this chapter,
therefore, we are going to focus only on the kinds of remedies a court may
grant when the Bill of Rights applies directly and vertically.
When it comes to identifying the kinds of remedies a court may grant
when the Bill of Rights applies directly and vertically, it is helpful to start
with section 172(1)(a) of the Constitution. This section provides that
‘[w]hen deciding a constitutional matter a court must declare that any law
or conduct that it is inconsistent with the Constitution is invalid to the
extent of its inconsistency’.
Apart from issuing a declaration of invalidity, section 172(1)(b) of the
Constitution also provides that when deciding a constitutional matter, a
court may make any order that is ‘just and equitable’. The Constitutional
Court has used this power to develop a number of mechanisms aimed at
regulating the impact of a declaration of invalidity. Among these are
severance, notional severance, reading in, controlling the retrospective
effect of a declaration of invalidity and temporarily suspending a
declaration of invalidity.
Unlike severance, notional severance and reading in, the power to
control the retrospective effect of a declaration of invalidity is expressly
referred to in section 172(1)(b)(i) and to suspend temporarily a declaration
of invalidity is expressly referred to in section 172(1)(b)(ii) of the
Constitution.10
The constitutional remedies referred to in sections 172(1)(a) and (b) of
the Constitution must also be read together with section 38. This section
provides that a court may grant ‘appropriate relief, including a declaration
of rights’ whenever a right in the Bill of Rights has been violated or
threatened. The Constitutional Court has used this power to develop a
number of additional remedies. Among these are interdicts, constitutional
damages and meaningful engagement.
Table 11.1 The remedies available for different breaches of the
Constitution

Direct vertical application Sections 38 and 172(1) • Declaration of invalidity

• Declaration of rights
• An interdict
• Constitutional damages
• Meaningful engagement

Direct horizontal Sections 8(2) and 8(3) • Remedies contained in

application legislation that give effect to
the Bill of Rights
• Develop the common law to
give effect to the Bill of
Rights

Indirect vertical and Section 39(2) • Common law remedies

horizontal application • Customary law remedies

PAUSE FOR REFLECTION

The nature of constitutional remedies

In those cases where a court finds that law or conduct has
unjustifiably infringed a right guaranteed in the Bill of
Rights, it must determine what the most appropriate
remedy would be. In this respect, it is important to note that
a constitutional remedy is one that focuses not only on the
harm to the complainant, but also on the harm to the
constitutional goal of creating a just and fair society. A
constitutional remedy must, therefore, vindicate the
Constitution and deter future infringement.
In Fose v Minister of Safety and Security, for example,
Kriegler J stated that:
[t]he harm caused by violating the Constitution is a harm to the
society as a whole, even where the direct implications of the
 violation are highly parochial. The rights violator not only harms
the particular person, but impedes the further realisation of our
constitutional promise.11

The constitutional promise will therefore only be upheld if

suitable remedies may be invoked in the event of a breach
of the Constitution and obviously if those remedies are
subsequently enforced. However, the challenge with
respect to determining an appropriate remedy is that to
ensure its effective enforcement, the remedy must be
extremely detailed and specific. If the remedy is not
detailed and specific, the violator could argue that he or
she is unable to comply with the order due to its
vagueness.
This reaffirms the fact that constitutional remedies are
forward-looking, community-orientated and structural as
opposed to backward-looking, individualistic and corrective
or retributive. At all times, the remedy must operate
generally to deter future infringements and eradicate
inconsistencies between law or conduct and the
Constitution.

11.2 Declarations of invalidity

11.2.1 Introduction
As we have seen, section 172(1)(a) of the Constitution states that when
deciding a constitutional matter within its power, a court ‘must declare that
any law or conduct that is inconsistent with the Constitution is invalid to the
extent of the inconsistency’. Section 172(1)(a) does not confer a discretion
on the courts. Where a law or provision conflicts with the Constitution, a
court is obliged to declare the law or provision invalid to the extent of the
inconsistency.12 The same applies to the conduct of a person or institution
bound by the Constitution.13
 The obligation to declare law or conduct that is inconsistent with the
Constitution to be invalid flows logically from the fact that the Constitution
is supreme. It is not surprising, therefore, that section 2 of the Constitution
expressly provides that ‘[t]his Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled’.
An important consequence of the supremacy of the Constitution is that
any law or conduct in conflict with the Constitution is invalid from the
moment that the conflict arises. This is the so-called doctrine of objective
invalidity. Although the invalidity will only have legal effect once a court
has confirmed that there is a conflict between the Constitution and
legislation or the actions of an individual, the invalidity does not only arise
at the moment when it is affirmed by the court.14 This means that an order
of invalidity usually has retrospective effect as the court merely confirms
that the legislation or the actions of an individual were invalid from the
moment the conflict with the Constitution arose.
The Constitutional Court adopted the doctrine of objective invalidity in
its judgment in Ferreira v Levin NO and Others; Vryenhoek and Others v
Powell NO and Others.15 In this case, the Court held as follows:
The Court’s order does not invalidate the law; it merely
declares it to be invalid. It is very seldom patent, and in
most cases is disputed, that pre-constitutional laws are
inconsistent with the provisions of the Constitution. It is
one of this Court’s functions to determine and pronounce
on the invalidity of laws, including Acts of Parliament.16
This does not detract from the reality that pre-existing laws either remained
valid or became invalid upon the provisions of the Constitution coming into
operation. In this sense, laws are objectively valid or invalid depending on
whether they are or are not inconsistent with the Constitution. The fact that
a dispute concerning inconsistency may only be decided years afterwards
does not affect the objective nature of the invalidity. The issue of whether a
law is invalid or not does not in theory, therefore, depend on whether, at the
moment when the issue is being considered, a particular person’s rights are
threatened or infringed by the offending law or not.17
When a person alleges that a statutory provision is constitutionally
invalid, a court must first attempt to interpret the impugned provision in a
way that would render it constitutionally valid. This is called reading down.
If this is not possible, however, the court must declare the law invalid.
Instead of simply declaring the law to be completely invalid, however, a
court should attempt to limit the substantive impact of the declaration by
severing the offending words or reading in new words to cure the
constitutional defect.18 It may also be necessary to limit the potentially
disruptive impact of the order by suspending the order of invalidity 19 or
limiting its retrospective effect. We will deal with each one of these
situations in turn.
However, as we consider all the permutations for remedies, it is
important to keep in mind that the overarching consideration taken into
account by the courts is the interests of justice and equity. What is required
is to vindicate the rights and interests of the successful litigant and to
provide effective relief with the least amount of disruption. In Fose, decided
under the interim Constitution, Ackermann J held:
Given the historical context in which the interim
Constitution was adopted and the extensive violation of
fundamental rights which had preceded it, I have no
doubt that this Court has a particular duty to ensure
that, within the bounds of the Constitution, effective
relief be granted for the infringement of any of the rights
entrenched in it. In our context an appropriate remedy
must mean an effective remedy, for without effective
remedies for breach, the values underlying and the rights
entrenched in the Constitution cannot properly be
upheld or enhanced.20
Although a court therefore has a general obligation to grant a remedy that is
just and equitable to litigants who successfully raise a constitutional
complaint, there are exceptions to this rule. For example, where a court
cannot properly tailor the relief while still providing an effective remedy,
the court may have to revert to other remedies that are less effective or it
may even decline to hear the appeal.21 In some cases, other interests or
matters, for example the best interest of the child over whom litigation is
being conducted, would preclude an order in favour of a successful
litigant.22
Where an order would otherwise produce such disorder or administrative
difficulties that the interests of justice served by such an order in favour of a
successful litigant are outweighed by the social dislocation such an order
may occasion, the court may also decline to provide an effective remedy.23
However, there are several ways in which the court can fashion its remedies
to avoid these problems while still providing effective relief. We now turn
to the various ways in which the court minimises the disruptive effect of an
order of invalidity while providing effective relief to the successful litigant.

11.2.2 Reading down

Reading down occurs when the words in a specific provision of a statute
can be interpreted in different ways: one construction is constitutional while
the other directly violates a constitutional provision. A court faced with this
situation must choose the interpretation that would render the provision
constitutionally valid over the unconstitutional interpretation.24 The
Constitutional Court has explained reading down as follows:
[J]udicial officers must prefer interpretations of
legislation that fall within constitutional bounds over
those that do not, provided that such an interpretation
can be reasonably ascribed to the section.25
Reading down is therefore not strictly speaking a remedy, but rather a
mandatory rule of interpretation used to avoid the invalidation of a legal
provision.
Reading down must therefore be distinguished from reading in which is
discussed below. Reading in is applied only once the court has made a
finding of invalidity. With reading down, the finding of invalidity is avoided
precisely by reading down the impugned provision. Reading down can only
occur when the impugned provision– on one reading of it – actually
conflicts with the Constitution. The court then prefers another reading to
avoid making an order of invalidity. Reading down is not always possible:
the court can only read down a legislative provision if that provision is
reasonably capable of the constitutional interpretation.26 If it is not
reasonably capable of that meaning, then the court must sever or read in
words to the statute.27 As the Constitutional Court explained:
On the one hand, it is the duty of a judicial officer to
interpret legislation in conformity with the Constitution
so far as this is reasonably possible. On the other hand,
the Legislature is under a duty to pass legislation that is
reasonably clear and precise, enabling citizens and
officials to understand what is expected of them. A
balance will often have to be struck as to how this tension
is to be resolved when considering the constitutionality of
legislation. There will be occasions when a judicial
officer will find that the legislation, though open to a
meaning which would be unconstitutional, is reasonably
capable of being read ‘in conformity with the
Constitution’. Such an interpretation should not,
however, be unduly strained.28
Whether the wording of an impugned legislative provision is reasonably
capable of a specific interpretation is not always obvious.29 Thus, the
Constitutional Court has provided different interpretations of the word
‘spouse’ in two different contexts. The Court found in one case that the
word ‘spouse’ was incapable of being interpreted as including couples in
permanent same-sex relationships 30 while finding that it was capable of
being interpreted as including the partners who had entered into a Muslim
marriage.31

11.2.3 Severance
Section 172(1)(a) requires a court to declare law or conduct invalid to the
extent of its inconsistency with the Constitution.32 A court therefore does
not have to declare invalid a complete section of the legislation if it is
possible to cut the bad parts out of the provision and retain those parts that
are not unconstitutional. This is called severance. The court will then strike
down a particular section, subsection or individual words in a subsection of
a law but leave the rest of the law intact.
The test for severance is whether ‘the good is not dependent on the bad’
33 and whether the good can be separated from the bad. The question to ask
is whether it is possible to give effect to the good part of the provision that
remains after the severance of the bad part. In other words, after the
exercise in severance in which the bad part is declared invalid, will the
good part still give effect to the main objective of the statute? ‘The test has
two parts: first, is it possible to sever the invalid provisions and second, if
so, does what remains give effect to the purpose of the legislative scheme?’
34
It is not always possible to sever the good from the bad while still giving
effect to the purpose of an impugned provision. In such case, the court has
to declare the provision as a whole invalid.35 The court will be circumspect
because of concerns about overstepping the separation of powers. It is
usually the legislature – and not the judiciary – that should draft and amend
legislation. Where an offending legislative provision is so overbroad that
the blame for the constitutional invalidity of the section ‘cannot be laid at
the door of any one word, or group of words, but rather permeates the entire
text’, then severance would not be appropriate.36
In Case and Another v Minister of Safety and Security and Others, Curtis
v Minister of Safety and Security and Others,37 for example, the
Constitutional Court had to consider the constitutionality of a censorship
provision enacted during the apartheid years that was so overbroad that it
clearly infringed on the right to freedom of expression. Because the section
was so overbroad, the Court could not sever the good from the bad and had
to strike down the provision as a whole. In arriving at this conclusion, the
Court held that if it had to:
 apply a blue pencil to each and every noun form and
transitive verb that presents overbreadth problems, we
effectively would write a new provision that bears only
accidental resemblance to that enacted by Parliament. If,
as appears to be the case, the scheme behind the statute
was to impose a comprehensive scheme of censorship to
give effect to a particular moral, cultural and political
world-view, it hardly does justice to the ‘main object’
thereof for this Court to pare it down to prohibit only
that discrete set of sexually-oriented expressions that this
Court believes may constitutionally be restricted. For
this Court to attempt that textual surgery would entail it
departing fundamentally from its assigned role under
our Constitution. It is trite but true that our role is to
review, rather than to re-draft, legislation. This Court
has already had occasion to caution against judicial
arrogation of an essentially legislative function in the
guise of severance.38

11.2.4 Notional severance

Notional severance is often confused with reading down and is not an easy
remedy to understand. Like severance it allows for certain parts of the law
or provision to be left intact while removing the constitutionally offending
parts. Unlike severance, however, the words are not actually struck out of
the impugned section. Instead, the impugned section is given a particular
meaning in the sense that the court instructs those who apply it that the
section can apply only to certain cases or in certain circumstances.
Notional severance differs from reading down in that the words in the
impugned legislation cannot reasonably be interpreted in the manner
provided by the court. If words can reasonably be interpreted in a manner
that would ensure that the impugned provision in the legislation is
constitutionally valid, the court is required to read down that section to do
so. With notional severance, the court instructs others how to interpret and
apply the section even when the words cannot reasonably be said to
encapsulate this instruction.39
Notional severance is usually deployed if other remedies would leave an
impermissible gap in the law. Thus, in Islamic Unity Convention v
Independent Broadcasting Authority and Others,40 the Constitutional Court
found that a regulation which prohibited the broadcasting of material that
was ‘likely to prejudice relations between sections of the population’ 41
was overbroad. The regulation thus limited the right to freedom of
expression in the Bill of Rights. However, the Court declined to strike down
the relevant portion quoted above because ‘a dangerous gap would result’
and ‘it would be neither just and equitable nor in the public interest to allow
such a gap to exist’.42
The Constitutional Court therefore decided that notional severance was
the only just and equitable remedy available. The Court wanted to ensure
that the relevant part of the impugned regulation would be ‘rendered
ineffective in its application to protected expression, but that a prohibition
[would be] left in place to prevent the broadcasting of unprotected
expression’ like hate speech.43 The Court therefore declared the impugned
regulation to be inconsistent with section 16 of the Constitution and invalid
to the extent that it prohibits the broadcasting of material that is:
likely to prejudice relations between sections of the
population; provided that this order does not apply to (i)
propaganda for war; (ii) incitement of imminent
violence; or (iii) advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes
incitement to cause harm.44
Finally, it is important to note that a court will not always be able to use
notional severance. In National Coalition for Gay and Lesbian Equality and
Others v Minister of Home Affairs and Others, for example, the
Constitutional Court pointed out that where:
the invalidity of a statutory provision results from an
omission, it is not possible, … to achieve notional
 severance by using words such as ‘invalid to the extent
that’, or other expressions indicating notional severance.
An omission cannot, notionally, be cured by severance …
. The only logical equivalent to severance, in the case of
invalidity caused by omission, is the device of reading
in.45

11.2.5 Reading in
When the court employs the remedy of reading in, it literally read words
into an unconstitutional legislative provision to cure that provision of its
unconstitutionality. As such, it is exactly the opposite of severance where
the court strikes out words from an unconstitutional provision to cure it of
its unconstitutionality.46 It follows that reading in is used in cases where a
legislative provision is unconstitutional because of the omission of certain
words and phrases.47 However, the courts have also read words into a
provision to narrow the reach of the provision that ‘is unduly invasive of a
right’.48 The court then orders that certain words or phrases should be read
into the provision to render it constitutionally valid.
It is important to note that reading in occurs only after the court has
established that a legislative provision is in conflict with the Constitution
and has declared the provision invalid. As such, reading in must be
distinguished from reading down which is a technique used to avoid an
order of invalidity altogether. Reading down is a method of statutory
interpretation required by section 39(2) of the Constitution and occurs to
avoid a finding of constitutional invalidity. Reading in, however, is a
remedy that is granted by the court after it has declared invalid an impugned
provision of legislation to cure the provision of its unconstitutionality.49
Reading in is an invasive remedy and raises separation of powers
concerns.50 However, the Constitutional Court held in National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs that there is in
principle no difference between severance and reading in. In both cases,
legislation enacted by parliament ‘is being altered by the order of a court. In
the one case by excision and in the other by addition’.51 The Court has
argued that reading in is justified, particularly if we embrace the view of
separation of powers as a structured dialogue between the three branches of
government. Reading in does not give the judiciary the final word on how
legislative provisions should be formulated:
It should also be borne in mind that whether the remedy
a court grants is one striking down, wholly or in part; or
reading into or extending the text, its choice is not final.
Legislatures are able, within constitutional limits, to
amend the remedy, whether by re-enacting equal
benefits, further extending benefits, reducing them,
amending them, ‘fine-tuning’ them or abolishing them.
Thus they can exercise final control over the nature and
extent of the benefits.52
Before reading words into a statute a court has to ensure, first, that the
newly created provision to which words have been added is consistent with
the Constitution and its fundamental values and, second, that the result
achieved would interfere with the laws adopted by the legislature as little as
possible. As long as there are still many provisions on the statute books
from the pre-constitutional era, ‘the first consideration will in those cases
often weigh more heavily than the second’.53
However, it will not always be appropriate to read words into an
impugned provision to cure its unconstitutionality. As the Constitutional
Court stated in National Coalition for Gay and Lesbian Equality v Minister
of Home Affairs:
… it will not be appropriate to read words in, unless in
so doing a court can define with sufficient precision how
the statute ought to be extended in order to comply with
the Constitution. Moreover, when reading in (as when
severing) a court should endeavour to be as faithful as
possible to the legislative scheme within the constraints
of the Constitution. Even where the remedy of reading in
is otherwise justified, it ought not to be granted where it
would result in an unsupportable budgetary intrusion. In
 determining the scope of the budgetary intrusion, it will
be necessary to consider the relative size of the group
which the reading in would add to the group already
enjoying the benefits. Where reading in would, by
expanding the group of persons protected, sustain a
policy of long standing or one that is constitutionally
encouraged, it should be preferred to one removing the
protection completely.54
Despite the warning to avoid reading in where it would result in an
unsupportable budgetary intrusion, the Court has read words into a statute
even where it did have budgetary implications.55

CRITICAL THINKING

How radical a constitutional remedy is reading

in?
Reading in can appear to be a rather radical remedy. This
is because it implicates the separation of powers doctrine
as the court – and not the legislature – in effect rewrites a
section of the law by reading words into the statute. It is
usually the legislature and not the judiciary that has to
formulate the wording of specific legal provisions and
reading in seems to come close to breaching this principle.
It is for this reason that the criteria set out above must be
adhered to.
However, remember that when a court performs a
reading in, it does not necessarily provide a final and
definitive determination of the law. The legislature is free to
amend the law in which words were read in by the court.
When the legislature does this, it engages in the kind of
constitutional dialogue which we discussed in chapter 2 on
the separation of powers. The legislature therefore
 potentially has the final say on the exact wording of the
impugned provision.
As long as any amendments to the law conform to the
Constitution, the court will not be able to interfere with the
determination of the wording made by the legislature. In
this sense, reading in is perhaps less radical than it may at
first appear. Lawyers must be aware, however, that reading
in may mean that the provisions of a statute as passed by
Parliament do not always accurately reflect its true
meaning as the Constitutional Court may have read words
into that statute.

11.3 Limiting the retrospective effect of an

order of invalidity
As we have seen, the constitutional supremacy clause automatically makes
any unconstitutional law or conduct a nullity from the moment the
inconsistency occurred.56 It is not only the legislation in conflict with the
Constitution that is nullified: any actions performed under the ostensible
authority of the legislation will also be invalid. Obviously, the
retrospective invalidation of legislation and any actions taken in good
faith under the authority of ostensibly valid legislation could have
disruptive results. As is always the case with the granting of remedies, the
question to ask is whether consideration of the interests of justice in a
particular case justifies the granting of an order.
As far as the retrospective effect of orders of invalidity is concerned, we
must ask if it is in the interests of justice that successful litigants obtain the
relief they seek:
It is only when the interests of good government
outweigh the interests of the individual litigants that the
court will not grant relief to successful litigants … the
litigants before the court should not be singled out for
the grant of relief, but relief should be afforded to all
 people who are in the same situation as the litigants …
[but the court should] be circumspect in exercising [its
powers in this regard].57
For example, when a court invalidates the provisions of a law that authorise
the Department of Home Affairs to grant refugee status to qualifying
applicants, the previous granting of refugee status to individual applicants
in terms of the now nullified law would also normally be invalid.
Accordingly, the court must consider in every case whether the interests of
justice and equity justify limiting the retrospective effect of a declaration of
invalidity.
The Constitutional Court has identified the following five factors as
relevant to such a consideration: 58
• The ‘interest of individuals must be weighed against the interest of
avoiding dislocation to the administration of justice and the desirability
of a smooth transition from the old to the new’ and the interest of
avoiding ‘the dislocation and inconvenience of undoing transactions,
decisions or actions taken under [the] statute’.59
• ‘Central to a consideration of the interests of justice in a particular case
is that successful litigants should obtain the relief they seek. It is only
when the interests of good government outweigh the interests of the
individual litigants that the Court will not grant relief to successful
litigants. In principle too, the litigants before the Court should not be
singled out for the grant of relief, but relief should be afforded to all
people who are in the same situation as the litigants.’ 60
• ‘As a general principle … an order of invalidity should have no effect on
cases which have been finalised prior to the date of the order of
invalidity.’ 61
• ‘No one, not criminal defendants, not the judicial system, not society as a
whole is benefited by a judgment providing a man shall tentatively go to
jail today, but tomorrow and everyday thereafter his continued
incarceration shall be subject to fresh litigation on issues already
resolved.’ 62
• The Constitutional Court has expressed doubt as to whether section 98(6)
of the interim Constitution (section 172(1)(b)(i) of the final Constitution)
may be used by a court to direct that actions are constitutionally valid
despite having been taken in terms of any proclamation issued under a
law declared to be invalid.63
Usually, where the Constitutional Court decides to vary the retrospective
effect of its declaration of invalidity, it does so by invalidating a statute
prospectively in the sense that it may no longer be applied from the date of
the order in unresolved matters. At the same time, its order operates
retrospectively in the limited sense that where appeal or review is still
pending or the time for the noting of an appeal has not yet expired, the
unconstitutionality of the statute may be raised on appeal.64

PAUSE FOR REFLECTION

Using a qualified retrospective order

In National Coalition for Gay and Lesbian Equality and
Another v Minister of Justice and Others,65 the
Constitutional Court declared invalid the common law rule
that criminalised sodomy between adult men, even where
this occurred consensually and in private. A crucial
question that had to be answered was whether the
retrospective effect of this invalidation should be curtailed.
The Court argued that it would be ‘manifestly and
grossly unjust and inequitable that such convictions should
not be capable of being set aside as people have been
convicted of an offence which – because of the principle of
objective constitutional invalidity – had ceased to exists as
an offence when the interim Constitution came into force
on 27 April 1994’.66 However, an unqualified retrospective
order may have had undesirable consequences as the
provision was used to convict and punish not only
 consensual acts between adults but also acts of male rape.
The Constitutional Court therefore found that:
The least disruptive way of giving relief to persons in respect of
past convictions for consensual sodomy is through the established
court structures. On the strength of the order of constitutional
invalidity such persons could note an appeal against their
convictions for consensual sodomy, where the period for noting
such appeal has not yet expired or, where it has, could bring an
application for condonation of the late noting of an appeal or the
late application for leave to appeal to a court of competent
jurisdiction. In this way effective judicial control can be exercised.
Although this might result in cases having to be reopened, it will in
all probability not cause dislocation of the administration of justice
of any moment. We should, however, limit the retrospective effect
of the order declaring the offence of sodomy to be constitutionally
invalid to cases of consensual sodomy. In respect of all other cases
of sodomy, the order should be limited to one which takes effect
from the date of this judgment. This is essential, in my view, to
prevent persons convicted of sodomy which amount to ‘male rape’
from having their past convictions set aside. To permit this would
be neither just nor equitable. In the absence of such a limitation
confusion might arise, upon a conviction being set aside in such
cases, as to whether a conviction of indecent assault or assault
with intent to do grievous bodily harm, could validly be
substituted.67

11.4 Suspension of an order of invalidity

Where a court declares legislation or conduct invalid, this order will
normally have immediate effect. However, section 172(1)(b)(ii) of the
Constitution allows a court temporarily to suspend the effect of a
declaration of invalidity in the interests of justice and equity after finding
the law to be inconsistent with the Constitution. When the court suspends
its order of invalidity, the invalid legislative provision remains operative on
condition that Parliament corrects the defect within a prescribed period of
time. If the matter is rectified, the declaration falls away and what was done
in terms of the law is given validity. If not, the declaration of invalidity
takes place at the expiry of the prescribed period and the normal
consequences attaching to such a declaration ensue.68
A suspension of an order of invalidity is used sparingly as it will have
the effect of not providing immediate and effective relief to the successful
litigant. Where the invalidity arises in a complex case in which
‘multifarious and nuanced legislative responses … might be available to the
legislature’ to resolve the problem, the court may suspend its order of
invalidity and provide Parliament with a grace period to resolve the
problem.69 A suspension of an order of invalidity is also appropriate where
a lacuna or gap would be left in the law if the impugned provision is
declared invalid. As the Constitutional Court explained in J and Another v
Director General, Department of Home Affairs and Others:
The suspension of an order is appropriate in cases where
the striking down of a statute would, in the absence of a
suspension order, leave a lacuna. In such cases, the Court
must consider, on the one hand, the interests of the
successful litigant in obtaining immediate constitutional
relief and, on the other, the potential disruption of the
administration of justice that would be caused by the
lacuna. If the Court is persuaded upon a consideration of
these conflicting concerns that it is appropriate to
suspend the order made, it will do so in order to afford
the legislature an opportunity ‘to correct the defect’. It
will also seek to tailor relief in the interim to provide
temporary constitutional relief to successful litigants.70
The Court may also suspend an order of invalidity where the defect in the
impugned legislation is purely procedural, for example in cases where
Parliament has failed to facilitate adequate public involvement in the law-
making process.71 The time provided to Parliament to resolve the problem
depends on the ‘complexity and variety of the statutory and policy
alternatives’ available to Parliament.72 Sometimes, proper legislation
passed by Parliament is the only appropriate manner with which to deal
with a constitutional defect in legislation.73 It would also not be
appropriate to invalidate legislation where such an order would be ‘chaotic
and prejudicial to the interests of justice and good government’.74 The
Court is more likely to exercise its powers to suspend the invalidity of pre-
constitutional legislation than post-constitutional legislation.75 When it
declares invalid post-constitutional legislation, it would only suspend the
order ‘where the result of invalidating everything done under such
legislation is disproportional to the harm which would result from giving
the legislation temporary validity’.76
A court looks at the precise circumstances of each case to determine
whether the order of invalidity should be suspended.77 The court does not
normally suspend an order of invalidity if the provisions are so ‘clearly
inconsistent’ with a fundamental right and ‘manifestly indefensible’ under
the general limitation clause that there is ‘no warrant for its retention, not
even temporarily’.78 This means that there have to be persuasive reasons to
exercise the power to suspend before a court will do so.79
In cases where the legislation limits a right of heightened importance –
such as the right to non-discrimination guaranteed in section 9 of the
Constitution – the Constitutional Court has found that:
those subject to the impugned provisions should not be
made to wait much longer to be relieved of the burden of
inequality and unfair discrimination … [as] … that
would mean that the benefits of the Constitution would
continue to be withheld from those who have been
deprived of them for so long.80
This places a burden on a litigant seeking a suspension of an order of
invalidity (usually the State) to persuade the court to exercise its powers in
terms of section 172(1)(b)(ii) of the Constitution in the interests of justice
and equity.81 It is important that all relevant information is placed before
the Court when it is asked to suspend an order of invalidity. The
information must relate to the consequences of an order of invalidity and
the time that will be needed to remedy the defect in the legislation.82
 A suspension of an order of invalidity can be seen as a technique used by
the Constitutional Court to negotiate separation of powers tensions that may
arise from invalidating legislation. As such, it can be seen as part of the
constitutional dialogue between the three branches of government
mentioned above. A consequence of this is that the power of Parliament is
only partly circumscribed by the suspended order of invalidity. As long as
the legislature amends the law to bring it into harmony with the
Constitution, it has a wide discretion to choose the means to achieve this
goal.
While Parliament (or any other legislature) may choose to correct the
defect in the invalidated law within the period specified, it need not do so.
If it chooses not to correct the defect in the period provided, the suspension
will fall away and the law or provision will become invalid. The legislature
may also take other steps to address the effect of the declaration of
invalidity. In the latter two situations, the declaration of invalidity will come
into effect on the specified date.83

CRITICAL THINKING

Suspending an order of invalidity

In Minister of Home Affairs and Another v Fourie and
Another,84 the Constitutional Court declared invalid the
common law definition of marriage (as well as an omission
in the Marriage Act 85) because it did not permit same-sex
couples to enjoy the status and the benefits it accords to
heterosexual couples. However, the majority (per Sachs J)
suspended this order for 12 months from the date of the
judgment to allow Parliament to correct the defects. The
Court ruled further that if Parliament did not correct the
defects within this period, the order of invalidity would take
effect.86 The majority in effect argued that for pragmatic
political reasons relating to the acceptance and legitimacy
of the ruling, a suspension would be required to allow
Parliament to resolve the problem:
This is a matter involving status that requires a remedy that is
secure. To achieve security it needs to be firmly located within the
broad context of an extended search for emancipation of a section
of society that has known protracted and bitter oppression. The
circumstances of the present matter call out for enduring and
stable legislative appreciation. A temporary remedial measure
would be far less likely to achieve the enjoyment of equality as
promised by the Constitution than would lasting legislative action
compliant with the Constitution. The claim by the applicants in
Fourie of the right to get married should, in my view, be seen as
part of a comprehensive wish to be able to live openly and freely as
lesbian women emancipated from all the legal taboos that
historically have kept them from enjoying life in the mainstream of
society. The right to celebrate their union accordingly signifies far
more than a right to enter into a legal arrangement with many
attendant and significant consequences, important though they
may be. It represents a major symbolical milestone in their long
walk to equality and dignity. The greater and more secure the
institutional imprimatur for their union, the more solidly will it and
other such unions be rescued from legal oblivion, and the more
tranquil and enduring will such unions ultimately turn out to be.87

In a minority judgment O’Regan J disagreed, pointing out

that the ‘effect of this order is that gay and lesbian couples
will not be permitted to marry during this period’.88
O’Regan J stated that this case concerned the
development of the common law by the courts, a
responsibility that lies, in the first place, with the courts and
not with the legislature.89 This is why the Court ought to
have developed the common law with immediate effect to
permit gays and lesbians to be married by civil marriage
officers.90 The doctrine of the separation of powers cannot
be used ‘to avoid the obligation of a court to provide
appropriate relief that is just and equitable to litigants who
successfully raise a constitutional complaint’.91 According
 to O’Regan J, the power and duty to protect constitutional
rights is conferred on the courts. This means the:
courts should not shrink from that duty. The legitimacy of an order
made by the Court does not flow from the status of the institution
itself, but from the fact that it gives effect to the provisions of our
Constitution. Time and again, there will be those in our broader
community who do not wish to see constitutional rights protected,
but that can never be a reason for a court not to protect those
rights.92

Given the Constitutional Court’s previous judgments in

which it held that where the right implicated is of specific
importance, a suspension would not ordinarily be granted,
and in the absence of technical impediments to an
immediate invalidation of the impugned provisions, it
appears as if O’Regan J’s view is more consistent with
precedent.

11.5 A declaration of rights

Section 38 of the Constitution provides that when a right in the Bill of
Rights has been infringed or threatened, a competent court may grant
appropriate relief, including a declaration of rights. In Rail Commuters
Action Group v Transnet Ltd t/a Metrorail, the Constitutional Court
explained that ‘declaratory relief is of particular value in a constitutional
democracy which enables courts to declare the law, on the one hand, but
leave to the other arms of government, the executive and the legislature, the
decision as to how best the law, once stated, should be observed’.93
It is important to distinguish between a declaration of rights and a
declaration of invalidity. This is because a declaration of rights is aimed
only at resolving a dispute between specific parties and may be given even
when no law or conduct has been found to be inconsistent with the Bill of
Rights.94 In addition, a declaration of rights, unlike a declaration of
invalidity, is also a discretionary remedy in the sense that the claim lodged
by an interested party for such an order does not in itself oblige the court
handling the matter to respond to the question which it poses.95
Declaratory orders are routinely used alongside structural interdicts
whereby a court declares the aspects in which the state has fallen short of its
constitutional obligations and then requires compliance by way of a
structural interdict. This enables the court to assert its role in performing the
‘watchdog’ function by proclaiming what a right in the Constitution entails
and how it should be interpreted. It then further allows the court to retain
jurisdiction over the case through the structural interdict.

11.6 An interdict
Interdicts are usually directed at future events and compel a defendant (or
any party to the litigation) to perform a task or to refrain from undertaking a
specific course of action. Apart from mandatory interdicts and prohibitory
interdicts, the Constitutional Court has held that a structural interdict may
be an appropriate remedy when a right in the Bill of Rights has been
unjustifiably infringed.
A structural interdict is also referred to as a supervisory interdict. A
structural interdict is a type of injunction which ‘requires the government to
report back to the court at regular intervals about the steps taken to comply
with the Constitution’.96 Essentially, this interdict compels the violator to
rectify the breach of fundament rights under court supervision. This is
usually achieved by requiring the official to report to the court on his or her
efforts to comply with the order. This allows the courts to exercise a
monitoring role over the administration of the order in cases that affect
individual rights. Structural interdicts are often used when the courts are
faced with any form of recalcitrant or incompetent official behaviour.
As the points set out above indicate, a structural interdict is an invasive
remedy. This is because it allows the courts to inspect proposed plans and to
ensure that they are not constitutionally suspect.97 Despite its invasive
nature, this remedy is used to avoid violating the separation of powers
doctrine since the courts defer to the authority and expertise of the
executive arm of government by allowing the relevant government
department to formulate plans to give effect to the Constitution.
 The Constitutional Court initially seldom issued structural interdicts.
However, as we shall see when we discuss social and economic rights
enforcement in chapter 16, the Court has issued several supervision and
engagement orders in eviction cases.98 The first time the Court issued a
structural interdict was in the case of August and Another v Electoral
Commission and Others 99 where the Electoral Commission was found to
have violated prisoners’ rights to vote. Recognising that it is the Electoral
Commission’s mandate to regulate the election process according to the
applicable legislation, the Court directed the Electoral Commission to
rectify the violation of constitutional rights. The approach taken by the
Court was to require the Electoral Commission to furnish it with an
affidavit within two weeks setting out exactly how the Commission would
comply with the order.
The Constitutional Court issued its second structural interdict in the case
of Sibiya and Others v Director of Public Prosecutions: Johannesburg High
Court and Others (Sibiya I).100 This case arose as a result of the 1995 case
of S v Makwanyane and Another 101 where the Court declared the death
penalty to be inconsistent with the interim Constitution and ordered the
substitution of lawful punishments for prisoners who had been sentenced to
death. However, a decade later, finding that ‘[t]he process of the
substitution of sentences has taken far too long’,102 the Court issued a
structural interdict so that it could supervise the sentence-conversion
process. The order required government to report by not later than
15 August 2005 to the Court on the enforcement of the order.103 Once a
comprehensive plan had been formulated, a final judgment was handed
down and the resolution of the matter was achieved.104 This was
notwithstanding that government had to make an application for an
extension of the timeframe for compliance with the order.105
In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes
and Others,106 the Constitutional Court granted an order for the eviction of
residents of the Joe Slovo Informal Settlement in Cape Town. However, the
Court required the applicants and the respondents, through their respective
representatives, to engage meaningfully with each other with a view to
reaching agreement on how the eviction should occur. The Court further
directed the parties to report back to the Court on the implementation of its
order as well as the allocation of permanent housing opportunities to those
affected by the order. It further instructed that in the event of the order not
being complied with by any party, or in the event of unforeseen difficulties,
any party would have the right to approach the Court for an amendment,
supplementation or variation of its order.
Structural interdicts usually take the form of a series of steps in pursuit
of achieving the mutually acceptable and achievable implementation of a
plan which provides for constitutional entitlements. The steps are as
follows:
• The starting point is a declaration by the court that the conduct is not
consonant with the provisions and duties stipulated in the Constitution.
• Thereafter, the court prescribes the conduct which is expected to bring
the deficient conduct into conformity with the constitutional imperatives.
• The process is not a dictatorial, top-down process. The court invites the
government department that has failed to perform its constitutional
obligations to submit a comprehensive plan. This plan must rectify the
incompatibility between the constitutional provisions and the conduct (or
omission) that is being complained of.
• The responsible government department draws up the plan, taking
cognisance of the department’s budgetary and human resource
constraints. The department must also take into account the sustainability
of the plan in terms of the timeframe set for its implementation. In this
regard, the department should set a series of achievable deadlines so that
progress can consistently be monitored.
• Once the department has drawn up the plan, it presents the plan to the
court. At this stage, the court invites comment by the plaintiff and any
other interested parties to the litigation.
• The court then incorporates any constructive comments into the plan.
The plan then becomes a binding order of court which the department
must implement strictly in accordance with the deadlines and achievable
targets set out in the plan.

CRITICAL THINKING
 When the state fails to obey court orders
If the responsible government department does not draw
up and submit a plan to the court, the court will reluctantly
draw up its own plan which the government department will
then have to implement. In such a case, the court may rely
on the assistance of any other parties to the litigation who
express an interest in assisting the court to craft the plan.
The consequence of this is that the judiciary then appears
to intrude into the domain of the executive in the
formulation of policy choices and the methods of
implementation.
However, this argument can be countered with reference
to the rule of law which is a founding value of our
constitutional democracy. In South Africa, many people do
not have the financial or other resources to approach a
court to have legal duties owed to them enforced. When an
order is handed down by a court, the rule of law is
seriously threatened if the state fails to obey court orders.
The provisions of section 34, read with sections 165 and
173 of the Constitution, place positive duties on the state to
ensure respect for the rule of law and adherence to the law
by providing citizens with effective mechanisms for
resolving disputes between themselves or between
themselves and the state. Failure to comply with court
orders then represents an attack on the effectiveness of
the legal system and the right to have legal duties enforced
by the state.

Apart from drawing up and submitting a comprehensive plan to the court,

the responsible government department must also provide continuous
feedback to the court on the status and success of the implementation of the
plan according to the deadlines contained in the plan. In some instances,
independent bodies, such as the South African Human Rights Commission,
may be appointed to monitor the implementation of the plan.
 When the matter is heard in court, the defendant, the monitoring body
and other interested parties are entitled to address the court on the progress
achieved in implementing the plan. The nature of a structural interdict
entails that if the plan is seen to be deficient or unachievable, it may be
amended and the amended plan then becomes the order of court. This is
repeated until such time as the constitutional norms have been achieved.

11.7 Constitutional damages

Damages is a concept that is usually associated with private law
relationships. Damages refers to a sum of money paid to a person to
compensate him or her for harm that was caused to him or her either by the
state or by another individual. Damages can also be paid to mitigate future
loss suffered as a result of the wrongful conduct of an individual or the
state.
The private law concept of damages is not designed to vindicate the
values underlying the Constitution nor to deter and prevent future
infringements. However, the Constitutional Court has accepted that where
these objects can be achieved through the payment of compensation, it may
be appropriate to issue an order awarding the complainant constitutional
damages.
The Constitutional Court discussed the concept of constitutional
damages for the first time in its judgment in Fose. In this case the
Constitutional Court held as follows:
• Where the violation of human rights entails the commission of a delict,
the award of constitutional damages in addition to damages available
under the common law will seldom be available. This is because it would
amount to awarding punitive damages against the state.
• Even when delictual damages are not available, constitutional damages
will not always be granted.107
In Fose, Fose alleged that he had been assaulted and tortured by the police
and claimed R130 000 in delictual damages for pain and suffering, loss of
amenities of life and infringement of his dignity. In addition, he also
claimed R200 000 in constitutional damages for the infringement of his
constitutional rights to human dignity, freedom, security of the person and
privacy.
In so far as his claim for constitutional damages was concerned, Fose
argued that a private law action for damages seeks to provide compensation
for harm caused to one private party by the wrongful action of another
private party. However, a constitutional action for damages seeks to:
• vindicate the fundamental right itself
• deter and prevent future infringements of the fundamental right by
organs of state
• punish those organs of state whose officials have infringed fundamental
rights in an egregious manner.108
The Constitutional Court dismissed Fose’s claim for constitutional damages
on the grounds that he had already been awarded delictual damages and a
person cannot benefit twice from the harm he or she has suffered.
In arriving at this decision, the Constitutional Court began by stating that
there is:
no reason in principle why appropriate relief should not
include an award of damages, where such an award is
necessary to protect and enforce [the rights in the Bill of
Rights]. Such awards are made to compensate persons
who have suffered loss as a result of the breach of a
statutory right if, on a proper construction of the statute
in question, it was the legislature’s intention that such
damages should be payable, and it would be strange if
damages could not be claimed for, at least, loss
occasioned by the breach of a right vested in the claimant
by the supreme law.109
After finding that appropriate relief does include an award of constitutional
damages where such an award is required to enforce or protect the rights in
the Bill of Rights, the Constitutional Court turned to consider whether
constitutional damages could also be claimed to deter or punish organs of
state whose officials have infringed fundamental rights.
 In this respect, the Constitutional Court began by stating that even
though punitive constitutional damages are awarded in some comparative
foreign jurisdictions such as the United States, serious criticisms have been
levelled against this practice. These criticisms include the following:
• There is no evidence that punitive damages do have a deterrent effect.
• Punitive damages provide the plaintiff with an unjustifiable windfall.
• Punitive damages exact punishment without the protection which the
criminal law affords.
• In those cases where punitive damages are awarded against the
government, the cost involved is almost inevitably shifted to the public at
large.110
Having set out these principles, the Constitutional Court went on to apply
them to the facts. In this respect, the Court first dealt with Fose’s claim for
damages to vindicate his constitutional rights and then with his claim for
damages to deter or punish the police for infringing his constitutional rights.
In so far as the claim for vindicatory damages was concerned, the
Constitutional Court began by stating that in the case at hand it was not
necessary to award constitutional damages to vindicate the plaintiff’s
constitutional rights. This was because if Fose succeeded in proving that he
had been assaulted by the police, he would be awarded substantial delictual
damages and that would be enough to vindicate his constitutional rights.111
In addition, the Constitutional Court stated further, it is doubtful whether,
even in the case of the infringement of a right which does not cause damage
to a plaintiff, an award of constitutional damages to vindicate the right
would be appropriate. This is because a declaratory order combined with a
suitable order as to costs would be a sufficiently appropriate remedy to
vindicate a plaintiff’s rights even in the absence of an award of
damages.112
In so far as the claim for punitive damages was concerned, the
Constitutional Court began by stating that it was not persuaded that
awarding punitive damages against the government would effectively deter
the police from torturing suspects. This is because nothing in our own
recent history, where substantial awards for death or brutality in detention
were awarded or agreed to, suggested that they had any preventative
effect.113
In addition, the Constitutional Court stated further, in a country where
there is a great demand on scarce public resources, it would be
inappropriate to use them to pay punitive damages to plaintiffs who had
already been compensated by delictual damages for the injuries caused to
them. The funds could be better employed in structural and systemic ways
to eliminate or substantially reduce the causes of infringements.114
Having made these points, the Constitutional Court went on to dismiss
the claim for constitutional damages.
Unlike in the case of Fose, constitutional damages were awarded in the
case of President of the Republic of South Africa and Another v Modderklip
Boerdery (Pty) Ltd.115 This case concerned the positive obligations on the
state to assist Modderklip to remove what had become approximately
80 000 trespassers from a portion of its farm.
After a High Court interdict for the eviction of the occupiers had not
been complied with, a writ of execution was issued at Modderklip’s
instance. The sheriff of Benoni insisted on a deposit of R1,8 million to
secure the costs of the eviction occasioned by the need to engage the
services of a security firm to facilitate the removals. Even the police would
not help Modderklip except to secure the peace during the eviction.
Having no other alternative, Modderklip approached the High Court. The
High Court found that Modderklip’s section 25 rights to property had been
violated by the trespassing of the occupiers. In addition, the state had failed
to realise its obligations under section 26 of the Constitution to seek, within
its available resources, to achieve the realisation of the occupiers’ right of
access to adequate housing and land.
On appeal, the SCA agreed with the High Court’s judgment and
expended its energies on determining an appropriate remedy. In the
circumstances, the SCA awarded compensation to the owner of the illegally
occupied property. It determined the amount of such compensation with
reference to section 12 of the Expropriation Act.116
The Constitutional Court endorsed the SCA’s judgment and held that the
SCA had referred to a number of advantages which other forms of relief did
not have. The award compensated Modderklip for the unlawful occupation
of its property in violation of its rights. It also ensured that the unlawful
occupiers would continue to have accommodation until suitable alternatives
were found and it relieved the state of the urgent task of having to find such
alternatives.117
The award for damages was further endorsed by the fact that the
Constitutional Court was acutely aware of the fact that Modderklip had
been forced into a dead-end by the unlawful occupation of its land and the
recalcitrant behaviour of the state in assisting it to enforce the interdict to
have the settlers removed. However, the Modderklip case is certainly not
authority for the proposition that constitutional damages are always
available.118
Although the cases where constitutional damages have been granted are
not numerous, Currie and De Waal argue that such damages are necessary
for at least two reasons:
• First, constitutional damages may be awarded where any other form of
relief will not vindicate the right or deter future infringements. This may
occur especially when the victim has missed a unique opportunity to
exercise a fundamental right, such as voting, attending a religious
ceremony or participating in an organised protest.
• Second, constitutional damages may be necessary to encourage victims
to come forward and report on human rights violation, thus vindicating
the Constitution.119

CRITICAL THINKING

Social assistance grants as a form of

constitutional damages
Currie and De Waal argue that various judgments in which
the courts have awarded social assistance grants to
litigants may be seen as a form of constitutional damages.
Referring to a slew of cases that arose in the mid-1990s, in
which many grant holders successfully challenged the
 unlawfulness of the termination of their grants, but the
reinstatement of grants or the payment of moneys owed
was delayed, the authors argue as follows:
Faced with increasing numbers of applicants for welfare grants, the
[provincial governments] soon started to fall behind with the
processing of applications. This generated a second phase of
litigation.120

Rather than granting the usual mandamus remedy where

there was a delay, the courts started to substitute their own
decisions for those of government on a wide scale. If a
decision was not made within a reasonable time, the High
Courts were prepared, as a form of ‘constitutional relief’, to
approve social assistance grants themselves, in addition
ordering government to make available back-payment and
interest. To an extent, the courts became an alternative
forum for the processing of social grants.

11.8 Meaningful engagement

Some remedies are aimed at directing role players to act in a manner more
in accordance with the notion of participatory democracy. Courts can use
these remedies to help deepen democracy and empower citizens who can
easily feel alienated from the bureaucratic state. One such a remedy is the
remedy of meaningful engagement. This remedy is similar in effect to the
structural interdict.121 The Constitutional Court granted this remedy for the
first time in its judgment in Occupiers of 51 Olivia Road, Berea Township
and 197 Main Street Johannesburg v City of Johannesburg and Others.122
In this case the Constitutional Court held that it would be
unconstitutional for a municipality to evict unlawful occupiers without first
engaging with them, individually and collectively, in a meaningful manner.
In arriving at this decision, the Constitutional Court stated that the City:
must respect, protect, promote and fulfil the rights in the
Bill of Rights. The most important of these rights for
 present purposes is the right to human dignity and the
right to life. In light of these constitutional provisions a
municipality that ejects people from their homes without
first meaningfully engaging with them acts in a manner
that is broadly at odds with the spirit and purpose of the
constitutional obligations set out in this paragraph taken
together.123
Apart from the constitutional provisions referred to above, the
Constitutional Court also stated that the duty to engage meaningfully with
people who may be rendered homeless after being evicted is squarely
grounded in section 26(2) of the Constitution. This is because section 26(2)
imposes an obligation on every sphere of government to take reasonable
legislative and other measures, within its available resources, to achieve the
progressive realisation of the right of access to adequate housing.124
The test for reasonableness, the Constitutional Court went on to state,
does not only impose an obligation on the City to engage meaningfully with
potentially homeless persons, but also to respond to the concerns they raise
during that process in a reasonable manner. This means that in some cases it
may be reasonable to make permanent housing available and, in others, to
provide no housing at all. The possibilities between these extremes are
almost endless. As long as the response of the municipality in the
engagement process is reasonable, however, that response complies with
section 26(2).125
In the same judgment, the Constitutional Court also stated that
engagement is a two-way process in which the City and those about to
become homeless would talk to each other meaningfully in order to achieve
certain objectives. While there is no closed list of objectives, the Court
explained further, the sorts of objectives that ought to be achieved when a
city wishes to evict people who may be rendered homeless as a result of the
eviction are as follows:
(a) what the consequences of the eviction might be;
(b) whether the city could help in alleviating those dire
consequences;
 (c) whether it was possible to render the buildings
concerned relatively safe and conducive to health for
an interim period;
(d) whether the city had any obligations to the occupiers
in the prevailing circumstances; and
(e) when and how the city could or would fulfil these
obligations’.126
The order granted by the Constitutional Court thus provided as follows:
1. The City of Johannesburg and the applicants are
required to engage with each other meaningfully and
as soon as it is possible for them to do so in an effort
to resolve the differences and difficulties aired in this
application in the light of the values of the
Constitution, the constitutional and statutory duties
of the municipality and the rights and duties of
citizens concerned.
2. The City of Johannesburg and the applicants must
also engage with each other in an effort to alleviate
the plight of the applicants who live in the two
buildings concerned in this application by making
the buildings safe and as conducive to health as is
reasonably practicable.
3. The City of Johannesburg and the applicants must
file affidavits before this Court on or before
3 October 2007 reporting on the results of the
engagement between the parties as at 27 September
2007.127
The agreement reached between the parties contained interim measures to
secure the safety of the building and to provide the occupiers with
alternative accommodation in the inner City of Johannesburg. These interim
measures included the provision, at the City’s expense, of toilets, potable
water, waste disposal services, fire extinguishers and a once-off operation to
clean and sanitise the properties. The City and the occupiers also agreed
that the alternative accommodation would consist of security against
eviction, access to sanitation, access to potable water, and access to
electricity for heating, lighting and cooking. Agreement was furthermore
reached that the City would decide on the nature and location of permanent
housing in consultation with the occupiers.

CRITICAL THINKING

Meaningful engagement as a means of

enhancing participatory democracy
It has been convincingly argued that the remedy of
meaningful engagement is ‘a progressive and effective
remedy capable of promoting social transformation and
enhancing participatory democracy and transparency and
accountability’.128
According to Chenwi, meaningful engagement
recognises the core importance of fostering participation,
especially by those confronted with the prospect of
eviction. She states that ‘the remedy fits into the
Constitutional Court’s vision of the kind of democracy the
South African Constitution establishes’.129
Support for this view is the well known case of Doctors
for Life International v The Speaker of the National
Assembly and Others 130 where the Court held that our
constitutional democracy contemplates both representative
as well as participatory democracy.

SUMMARY

In every case of a prima facie violation (or threatened violation) of rights or

the perceived contravention of the Constitution, one of the first questions
the legal representative will ask is, ‘What remedy do we want in order to
vindicate the clients’ right?’ The remedy being sought will usually inform
how the case is structured and argued. This is in accordance with the Latin
maxim ubi ius ubi remedium – where there is a right, there is a remedy.
This is the defining principle of the South African legal order with respect
to the enforcement of the Constitution. It would be nonsensical for the
Constitution to prescribe a comprehensive set of rights if there were no
mechanisms created to uphold those rights. Therefore, with regard to the
effectiveness of courts in awarding appropriate and enforceable remedies, it
is appropriate to quote the late Chief Justice Mahomed when he said:
Unlike Parliament or the executive, the courts do not
have the power of the purse or the army or the police to
execute their will. The highest courts in constitutional
democracies do not have a single solider at their
command. They would be impotent to protect the
Constitution if the agencies of the state that control the
massive financial and physical resources refuse to
command those resources to enforce the orders of the
courts. The courts could easily be reduced to paper tigers
with ferocious capacity to snarl and to roar but no teeth
with which to bite and no sinews to execute their
judgments which may be reduced to pieces of sterile
scholarship, toothless wisdom or pious poetry. As already
happened many times, the potentially awesome
theoretical power of the judiciary in the Constitution
could, in those circumstances, implode into nothingness.
Judges in such circumstances would visibly be
demeaned. But much, much worse, human rights could
irreversibly be impaired and civilisation itself
dangerously imperilled.131
Invalidating legislation can have drastic consequences. Courts use various
techniques to limit the drastic consequences of orders of invalidity,
including suspending an order of invalidity to give Parliament a chance to
remedy the defect, severing the bad parts of a provision from the good
without invalidating an entire section and reading words into the statute to
render it constitutionally valid.

1 Zakrzewski, R (2005) Remedies Reclassified 13.

2 Mbazira, C (2008) You are the ‘weakest link’ in realizing socio-economic rights: Goodbye –
Strategies for effective implementation of court orders in South Africa, Socio-economic Rights
Project, Community Law Centre, available at http://www.escr-
net.org/usr_doc/Mbazira,_Weakest_Link_in_Realising_Socio-Economic_Rights.pdf.
3 Klare, K (2008) Legal subsidiarity and constitutional rights: A reply to AJ van der Walt
Constitutional Court Review 1:129–40 at 140.
4 (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579
(29 November 1995) para 32.
5 See Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and
Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000)
paras 63–4; Fraser v Naude and Another (Fraser II) (CCT14/98) [1998] ZACC 13; 1999 (1)
SA 1; 1998 (11) BCLR 1357 (23 September 1998) paras 9–10.
6 Fraser (II) paras 9–10.
7 Tsotetsi v Mutual and Federal Insurance Company Ltd (CCT16/95) [1996] ZACC 19; 1996
(11) BCLR 1439; 1997 (1) SA 585 (12 September 1996) para 10.
8 (678/12) [2013] ZASCA 29; [2013] 2 All SA 501 (SCA); 2013 (4) SA 557 (SCA) (27 March
2013).
9 AllPay para 99.
10 S 172(1)(b)(i) provides that ‘[w]hen deciding a constitutional matter within its power a court
may make any order that is just and equitable, including an order limiting the retrospective
effect of the declaration of invalidity’. S 172(1)(b)(ii) provides that ‘[w]hen deciding a
constitutional matter within its power a court may make any order that is just and equitable,
including an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect’.
11 (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (5 June 1997) para 95.
12 See Dawood para 59, where the Court stated:
It is clear from this provision that a court is obliged, once it is has concluded that a
provision of a statute is unconstitutional, to declare that provision to be invalid to
the extent of its inconsistency with the Constitution. In addition, the court may also
make any order that it considers just and equitable including an order suspending
the declaration of invalidity for some time.
13 S 2 read with s 172(1) of the Constitution.
14 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95)
[1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) paras 26, 27
and 158; Fose para 94.
15 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995).
16 Ferreira; Vryenhoek para 27.
17 Ferreira; Vryenhoek para 27.
18 See S and Others v Van Rooyen and Others (General Council of the Bar of South Africa
Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June
 2002) para 88:
[L]egislation must be construed consistently with the Constitution and thus, where
possible, interpreted so as to exclude a construction that would be inconsistent with
[the Constitution]. If held to be unconstitutional, the appropriate remedy ought, if
possible, to be in the form of a notional or actual severance, or reading in, so as to
bring the law within acceptable constitutional standards. Only if this is not possible,
must a declaration of complete invalidity of the section or subsection be made.
See also Bishop, M ‘Remedies’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law
of South Africa 2nd ed rev service 5 9.86.
19 J and Another v Director General, Department of Home Affairs and Others (CCT46/02) [2003]
ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC) (28 March 2003) para 22.
20 Fose para 69.
21 Dawood paras 63–4; Fraser (II) paras 9–10; Minister of Home Affairs and Another v Fourie
and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC)
(1 December 2005) para 170.
22 Fraser (II) paras 9–10.
23 Tsotetsi para 10.
24 See Bishop (2013) 9.87.
25 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545
(CC) (25 August 2000) para 23.
26 See, for example, Bhulwana; Gwadiso para 29; National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17;
2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) paras 25–6.
27 See Fourie para 33.
28 Hyundai Motor Distributors para 24.
29 See, for example, Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another (CCT78/07) [2008]
ZACC 12; 2009 (1) SA 337 (CC); 2008 (11) BCLR 1123 (CC) (25 July 2008) where the judges
on the Constitutional Court differed about this question.
30 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs paras 25–6.
31 Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004
(7) BCLR 735 (CC) (11 March 2004) paras 19–25.
32 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 290.
33 See Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding
Officer Port Elizabeth Prison and Others (CCT19/94, CCT22/94) [1995] ZACC 7; 1995 (10)
BCLR 1382; 1995 (4) SA 631 (22 September 1995) para 16.
34 Coetzee; Matiso para 16.
35 See Bishop (2013) 9.99.
36 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and
Security and Others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5)
BCLR 608 (9 May 1996) para 71.
37 (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5) BCLR 608 (9 May 1996).
38 Case, Curtis paras 72–3.
39 See Bishop (2013) 9.102.
40 (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002).
41 Schedule 1 Clause 2(a) of the Code of Conduct for Broadcasting Services in the Independent
Broadcasting Authority Act 153 of 1993.
42 Islamic Unity Convention para 54.
43 Islamic Unity Convention para 55.
44 Islamic Unity Convention para 58. See also Ferreira; Vryenhoek.
45 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) para 64.
46 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74; Lawyers
for Human Rights and Other v Minister of Home Affairs and Other (CCT 18/03) [2004] ZACC
12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) paras 45–7.
47 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74.
48 S v Manamela and Another (Director-General of Justice Intervening) (CCT25/99) [2000]
ZACC 5; 2000 (3) SA 1; 2000 (5) BCLR 491 (14 April 2000) para 57.
49 In Zuma v National Director of Public Prosecutions (8652/08) [2008] ZAKZHC 71; [2009] 1
All SA 54 (N); 2009 (1) BCLR 62 (N) (12 September 2008) paras 23–5, Nicholson J wrongly
used reading in as an interpretative strategy without having declared invalid the relevant
section of the National Prosecuting Authority Act 32 of 1998 into which words were read. See
generally Bishop (2013) 9.104–9.111.
50 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 66.
51 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 67. The
Constitutional Court partly relied on the Canadian Supreme Court judgment in Schachter v
Canada (1992) 93 DLR (4th) 1 para 69 to justify its use of the reading in remedy.
52 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 76.
53 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74.
54 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 75.
55 See Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v
Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505
(CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 88.
56 Fose para 94. See also National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR
1517 (9 October 1998) paras 93–6.
57 Bhulwana, Gwadiso para 32.
58 See S v Ntsele (CCT25/97) [1997] ZACC 14; 1997 (11) BCLR 1543 (14 October 1997) para 14
and Bhulwana, Gwadiso para 32.
59 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 43.
60 Bhulwana, Gwadiso para 32.
61 Bhulwana, Gwadiso para 32.
62 Mackey v US 401 US 667 (1971) at 691 quoted with approval in Bhulwana, Gwadiso para 32.
63 Executive Council of the Western Cape Legislature and Others v President of the Republic of
South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA
877 (22 September 1995) para 105. In this case the President sought to invoke the interim
Constitution’s equivalent of s 172(1)(b)(i) to validate proclamations which had the effect of
amending an Act of Parliament. The Court found this to be ‘logically inconsistent’ since the
reason why the amendments were invalid in the first place was that they should have been
passed by Parliament and not the President.
64 The order in Bhulwana, Gwadiso is a representative example.
65 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998).
66 National Coalition for Gay and Lesbian Equality v Minister of Justice para 96.
67 National Coalition for Gay and Lesbian Equality v Minister of Justice paras 97–8.
68 Executive Council of the Western Cape Legislature para 106.
69 Fraser v Children’s Court Pretoria North and Others (CCT31/96) [1997] ZACC 1; 1996 (8)
BCLR 1085; 1997 (2) SA 218 (5 February 1997) (Fraser I) para 50. See also Dawood para 63;
South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007]
ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC); (2007) 28
ILJ 1909 (CC) (30 May 2007).
70 (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC) (28 March 2003)
para 21.
71 Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)
[2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006)
para 114.
72 Fraser I para 51.
73 Fraser I para 50.
74 Fraser I para 51.
75 Executive Council of the Western Cape Legislature para 108.
76 Executive Council of the Western Cape Legislature para 107.
77 Fourie para 135.
78 Coetzee; Matiso para 18; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1;
1996 (3) BCLR 293; 1996 (2) SA 464 (9 February 1996) para 30.
79 Bhulwana, Gwadiso para 30; Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA
197; 1996 (6) BCLR 752 (15 May 1996) para 51.
80 Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1)
SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 108.
81 See Currie and De Waal (2001) 295.
82 See Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC 7; 1997 (6) BCLR 677;
1997 (3) SA 772 (5 June 1997) para 41.
83 Executive Council of the Western Cape Legislature para 113.
84 (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December
2005).
85 Act 25 of 1961.
86 Fourie paras 132 and 162.
87 Fourie paras 136–7.
88 Fourie para 165.
89 Fourie para 167.
90 Fourie para 169.
91 Fourie para 170.
92 Fourie para 171.
93 (CCT 56/03) [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC)
(26 November 2004) para 108.
94 See National Director of Public Prosecutions v Mohamed NO and Others (CCT44/02) [2003]
ZACC 4; 2003 (1) SACR 561; 2003 (5) BCLR 476; 2003 (4) SA 1 (CC) (3 April 2003)
para 58.
95 See JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others
(CCT49/95) [1996] ZACC 23; 1996 (12) BCLR 1599; 1997 (3) SA 514 (21 November 1996)
para 15.
96 Roach, K ‘Crafting remedies for violations of economic, social and cultural rights’ in Squires,
J, Langford, M and Thiele, B (eds) (2005) The Road to a Remedy: Current Issues in the
 Litigation of Economic, Social and Cultural Rights 113.
97 Ebadolahi, M (2008) Using structural interdicts and the South African Human Rights
Commission to achieve judicial enforcement of economic and social rights in South Africa
New York University Law Review 83(5):1565–1606 at 1596.
98 See Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg and Others (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475
(CC) (19 February 2008) para 14 and Schubart Park Residents’ Association and Others v City
of Tshwane Metropolitan Municipality and Another (CCT 23/12) [2012] ZACC 26; 2013 (1)
SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012).
99 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999).
100 (CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC); 2006 (1)
SACR 220 (CC); [2005] JOL 14514 (CC) (25 May 2005).
101 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164;
1995 (2) SACR 1 (6 June 1995).
102 Sibiya I para 59.
103 Sibiya I para 63.
104 Sibiya and Others v Director of Public Prosecutions (Sibiya III) (CCT45/04B) [2006] ZACC
22; 2006 (2) BCLR 293 (CC) (30 November 2006) paras 22–3.
105 Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others
(Sibiya II) (CCT 45/04) [2005] ZACC 16; 2006 (2) BCLR 293 (CC); [2005] JOL 15699 (CC)
(7 October 2005).
106 (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC); 2010 (3) SA 454 (CC) (10 June
2009) para 7.
107 Fose para 58.
108 Fose para 17.
109 Fose para 60.
110 Fose para 65
111 Fose para 67.
112 Fose para 68.
113 Fose para 71.
114 Fose para 72.
115 (CCT20/04) [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005).
116 Act 63 of 1975.
117 Modderklip para 58.
118 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and
Another (CC) [2011] ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) (1 December
2011).
119 Currie and De Waal (2005) 219.
120 Currie and De Waal (2005) 223–4.
121 The High Court had previously adopted a similar method of insisting on constructive dialogue
between the parties before handing down its order. In Lingwood and Another v The Unlawful
Occupiers of R/E of Erf 9 Highlands 2008 (3) BCLR 325 (W) para 33, the Court refused an
eviction order until such time as the parties had attempted to achieve a mutually acceptable
solution. This case, along with the cases of Sailing Queen Investments v The Occupants La
Colleen Court 2008 (6) BCLR 666 (W) and Blue Moonlight Properties 39 (Pty) Ltd v
Occupiers of Saratoga Avenue and Another 2009 (1) SA 470 (W), established the trend
towards the creation of meaningful engagement as a remedy.
122 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008).
See also Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005
(1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) para 39 and Residents of Joe
Slovo Community. See also Chenwi, L (2009) A new approach to remedies in socio-economic
rights adjudication: Occupiers of 51 Olivia Road and Others v City of Johannesburg and
Others Constitutional Court Review 2:371–93 at 373.
123 Occupiers of 51 Olivia Road para 16.
124 Occupiers of 51 Olivia Road para 17.
125 Occupiers of 51 Olivia Road para 18.
126 Occupiers of 51 Olivia Road para 14.
127 Occupiers of 51 Olivia Road para 5.
128 Chenwi (2009) 373.
129 Chenwi (2009) 381.
130 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) paras 111 and 116.
131 Mahomed, I (1998) The independence of the judiciary South African Law Journal 115(4):658–
67 at 658.
Equality, human dignity and
privacy rights

12.1 Introduction
12.2 The right to equality and non-discrimination
12.2.1 Introduction: substantive equality versus formal
equality
12.2.2 Differentiation and discrimination
12.2.3 Values underlying the right to equality: human dignity
and equality
12.2.4 Attacking the constitutionality of a legislative
provision: section 9 of the Constitution
12.2.4.1 Introduction
12.2.4.2 Mere differentiation: section 9(1)
12.2.4.3 Redress measures (affirmative action): section 9(2)
12.2.4.3.1 Basic approach
12.2.4.3.2 The test for redress (affirmative action) measures in
terms of section 9(2)
12.2.4.4 Unfair discrimination: section 9(3)
12.2.4.4.1 Does the differentiation amount to discrimination?
12.2.4.4.2 Is the discrimination unfair?
12.2.5 Non-statutory imposed discrimination: the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of
 2000
12.3 The right to human dignity
12.3.1 Introduction
12.3.2 Human dignity as a right and as a value
12.4 The right to privacy
12.4.1 Introduction
12.4.2 Scope and content of the right to privacy
12.4.3 Privacy regarding sexual intimacy
Summary

12.1 Introduction
The value of dignity is a central value underlying the Constitution and we
could even say it is the cornerstone of the Constitution and the rights
protected in it.1 This is made clear by section 1(a) of the Constitution,
which states that the Republic of South Africa is founded on the values of
human dignity, the achievement of equality and the advancement of human
rights and freedoms.2 When considering the scope and content of the
various rights in the Bill of Rights, it is important to understand that human
dignity informs constitutional adjudication and interpretation and is ‘a value
that informs the interpretation of many, possibly all, other rights’.3 It is a
‘motif which links and unites equality and privacy’, and which ‘runs right
through the protections offered by the Bill of Rights’.4 The value of dignity
permeates the Bill of Rights to contradict South Africa’s apartheid past ‘in
which human dignity for black South Africans was routinely and cruelly
denied’.5
As we shall see, dignity is not only a value that permeates the Bill of
Rights and the Constitution as a whole; it is also a justiciable and
enforceable right. In many cases where the value of human dignity is
offended, the primary constitutional breach occasioned may be of a more
specific right. Arguably, the most important of these rights in the South
African context – given its history of discrimination – is the right to
equality.6 As we shall see, there is a strong link between the value of
dignity and the enforcement of the right to equality and non-discrimination.
The truth is that the value of dignity also undergirds most, if not all, of the
other rights contained in the Bill of Rights.
It is not easy to pin down the content of the value of human dignity.7 The
Constitutional Court has recognised that, in the context of Bill of Rights
adjudication, this value of human dignity recognises the inherent worth of
all individuals as members of our society, as well as the value of the choices
that they make. It comprises the ‘deeply personal understanding we have of
ourselves, our worth as individuals and our worth in our material and social
context’.8 The value of dignity asserts that every human being counts; that
every human being has infinite value, regardless of his or her personal
circumstances or actions. Given that every human being counts, every
human being is entitled to be treated as a human being and to be valued. As
we discuss the various rights in the Bill of Rights, it will be important to
keep in mind that this notion of human dignity informs the approach taken
by the Constitutional Court in interpreting and applying the various
substantive rights.
In this chapter we focus on the right to equality, the right to dignity and
the right to privacy, the denial of which can arguably be said to have
resulted in some of the most egregious forms of injustice during the
apartheid era and continue to rob many people of respect and concern. The
denial of these rights has drastic direct and personal effects on individuals,
but it would be a mistake to view these rights only in such individualistic
terms. Often, the manner in which society is structured, the cultural
assumptions deeply embedded in society and the vast inequalities between
rich and poor have a direct and lasting effect on the denial of these rights. It
is therefore impossible not to consider these rights against the backdrop of
the broader social, economic and political context and to remain mindful of
how the broader context influences our understanding of the operation of
these rights. It would therefore be a mistake to analyse these rights and the
jurisprudence of the Constitutional Court relating to these rights (or any
other rights protected in the Bill of Rights for that matter) in an a-contextual
or overtly formalistic manner. It must always be remembered that rights are
aimed at protecting individual human beings and at promoting their well-
being and ability to make meaningful life choices. This means that the
actual lived reality of individuals and the effects of impugned actions or
omissions by both the state and private parties will always be centre stage
when considering breaches of the rights in the Bill of Rights.9

PAUSE FOR REFLECTION

The broader context within which rights

adjudication takes place
The social and economic realities of South Africa (including
deep inequality and an uneven distribution of social and
economic privileges), some cultural beliefs and practices
as well as sometimes deeply entrenched prejudices and
harmful beliefs all potentially affect the ability of individuals
to live lives of dignity and respect. The provisions in the Bill
of Rights cannot on their own eradicate these factors which
hamper the realisation of the rights in the Bill of Rights.
While human rights can be invoked to help facilitate the
South African transformation, more systemic problems
require concerted action from other important role players,
including the government of the day, civil society groups,
religious institutions, unions, political parties, business and
individual citizens.
However, by taking account of the broader context in
South Africa within which rights adjudication takes place,
the Constitutional Court acknowledges that the full harm of
the denial of human rights cannot be identified and
addressed by merely looking in a formalistic and a-
contextual manner at individual litigants and asking
whether that litigant was harmed. This approach
recognises that South Africa’s colonial and apartheid
history created a society that is profoundly unfair and
unjust. It also acknowledges that deeply entrenched forms
of patriarchy, homophobia as well as a long history of
 political oppression, have not fostered a culture of respect
for diversity and for democratic values of openness,
tolerance and broadmindedness. When interpreting rights
in the Bill of Rights and when deciding whether rights are
being infringed, these realities can therefore not be denied.

12.2 The right to equality and non-

discrimination

12.2.1 Introduction: substantive equality versus formal

equality
Apartheid systematically discriminated against black South Africans in all
aspects of economic and social life. As the Constitutional Court has pointed
out:
Black people were prevented from becoming owners of
property or even residing in areas classified as ‘white’,
which constituted nearly 90% of the landmass of South
Africa; senior jobs and access to established schools and
universities were denied to them; civic amenities,
including transport systems, public parks, libraries and
many shops were also closed to black people. Instead,
separate and inferior facilities were provided. The deep
scars of this appalling programme are still visible in our
society. It is in the light of that history and the enduring
legacy that it bequeathed that the equality clause needs
to be interpreted.10
But it is not only black people who have suffered and sometimes continue
to suffer from discrimination. Women, gay men and lesbians, people with
disabilities, HIV-positive people, foreigners, religious minorities and many
individuals with distinctive attributes or characteristics have also suffered
marginalisation and exclusion and to some extent still do. When
considering the scope and content of the right to equality, it is important to
have regard to these realities.
No two people in the world are identical in terms of their attributes,
characteristics, intelligence or other talents. Nor do people enjoy identical
benefits and opportunities as they grow up. This is particularly true in South
Africa, a country in which vast discrepancies in wealth, educational
opportunities and access to resources led to an unequal distribution of
opportunities. Race, class and gender differences have also had an impact
and perpetuate the subordination of black people, women, gay men,
lesbians and the poor. A person’s inborn talents, predisposition and the
status accorded to him or her based on irrelevant considerations such as
race, gender or sexual orientation, as well as other factors such as the
quality of education he or she receives, the access he or she has to financial
and other resources, and the opportunities and support parents or caregivers
are capable of providing, influence the extent to which he or she manages to
live a rich and fulfilled life. Through no fault of their own, different people
from different backgrounds have an unequal chance to reach their goals in
life.
The right to equality is guaranteed in section 9 of the Bill of Rights.
Section 9 reads as follows:
(1) Everyone is equal before the law and has the right to
protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all
rights and freedoms. To promote the achievement of
equality, legislative and other measures designed to
protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be
taken.
(3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,
belief, culture, language and birth.
 (4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed
in subsection (3) is unfair unless it is established that
the discrimination is fair.
Section 9 thus aims to address some of the unfairness inherent in this state
of affairs while also providing a legal framework to prevent unfair
treatment of individuals based on their race, sex, gender, sexual orientation,
disability and other personal characteristics or attributes. As such, the right
to equality is an essential component of the transformative Constitution.
The reason for this is that the right to equality encapsulates the aspiration of
eventually achieving a society in which all enjoy equal access to the
resources and amenities of life, and are able to develop their full human
potential.11
Two important consequences flow from this conception of the right to
equality:
• First, the right to equality cannot entail a guarantee that all people should
be treated identically at all times, regardless of their personal attributes
or characteristics, social or economic status. The right should therefore
be viewed as entailing more than a formal prohibition against
discrimination.
• Second, the right to equality must guarantee more than equality before
the law and must focus on the effects or impact of legal rules or other
differentiating treatment on individuals. The right to equality cannot
therefore focus merely on whether two people have been treated in an
identical manner by the legal rule or by the institution or individual
concerned. The idea of substantive equality best captures this approach
to equality jurisprudence.
We can contrast substantive equality with the traditional, liberal idea of
formal equality.12 Underlying formal equality is the belief that inequality
is irrational and arbitrary, that people are all born free and equal, and that
the harm of discrimination is situated in the failure of a government to treat
all people as equally free.13 Formal equality focuses on the formal way in
which the law treat individuals or groups. It explicitly denies the need to
take into account the social and economic context or the differences in
power, status and opportunities between individuals or groups of
individuals when judging whether the equality injunction has been breached
or not. Formal equality demands that all people should be treated in the
same manner, regardless of their personal circumstances, their history, their
social and economic status, and whether they have been discriminated
against in the past or still face discrimination in the present.14 Formal
equality demands neutrality and does not accommodate different treatment
of people who are socially and economically different from one another.
The concept of formal equality is often criticised because this neutral
approach to equality masks forms of bias. It ignores the fact that neutral
standards often embody the interests and experiences of socially privileged
groups whose views and attitudes are so dominant that they have become
invisible and appear to be neutral. Formal equality is also said to ignore the
actual social and economic differences between people, how this affects
people’s chances in life and the different power wielded by different
individuals and groups in society. As such, an insistence on the formal
equal treatment of all people – regardless of their social and economic
status – may exacerbate the inequality of socially and economically
marginalised and vulnerable groups. It does this by ignoring the actual
inequality between the dominant or privileged groups and marginalised and
vulnerable groups and the ways in which seemingly neutral rules continue
to advantage the privileged and dominant in society.15
Substantive equality, however, proceeds from the understanding that
there are structural or systemic reasons why not all individuals enjoy equal
opportunities to reach their full life potential. Substantive equality focuses
on the actual economic, social and political conditions of groups and
individuals in society. As the Constitutional Court pointed out:
Particularly in a country such as South Africa, persons
belonging to certain categories have suffered
considerable unfair discrimination in the past. It is
insufficient for the Constitution merely to ensure,
 through its Bill of Rights, that statutory provisions which
have caused such unfair discrimination in the past are
eliminated. Past unfair discrimination frequently has
ongoing negative consequences, the continuation of
which is not halted immediately when the initial causes
thereof are eliminated, and unless remedied, may
continue for a substantial time and even indefinitely.
Like justice, equality delayed is equality denied.16
Substantive equality asks what impact differentiating legal rules or other
differentiating treatment will have on groups or individuals, given
differences in the social and economic status of such groups or individuals,
and given the way in which existing ‘neutral’ legal rules privilege the
economically and culturally dominant and powerful in society. A legal
commitment to substantive equality therefore entails attention to the
context. This context includes the social and economic inequalities in
society, the effects of past and ongoing prejudice and discrimination on the
basis of race, sex, gender, sexual orientation, disability, economic status and
other grounds on the life opportunities of individuals. The context also
includes the manner in which private relationships, such as marriage and
child-rearing duties, continue to be structured in ways that produce or
perpetuate disadvantage and subordination. The focus is on the impact of
the treatment instead of the treatment itself. Substantive equality is remedial
in nature and aims to overcome the effects of past and ongoing prejudice
and discrimination as well as the broader structural reasons for the
disempowerment and economic disadvantage faced by some individuals or
groups in society.
The South African Constitutional Court has embraced the notion of
substantive equality, stating in Minister of Finance and Other v Van
Heerden that:
This substantive notion of equality recognises that
besides uneven race, class and gender attributes of our
society, there are other levels and forms of social
differentiation and systematic under-privilege, which still
persist. The Constitution enjoins us to dismantle them
 and to prevent the creation of new patterns of
disadvantage. It is therefore incumbent on courts to
scrutinise in each equality claim the situation of the
complainants in society; their history and vulnerability;
the history, nature and purpose of the discriminatory
practice and whether it ameliorates or adds to group
disadvantage in real life context, in order to determine its
fairness or otherwise in the light of the values of our
Constitution. In the assessment of fairness or otherwise a
flexible but ‘situation-sensitive’ approach is
indispensable because of shifting patterns of hurtful
discrimination and stereotypical response in our evolving
democratic society. The unfair discrimination enquiry
requires several stages.17
It is clear from this approach that the context within which a court must
judge an equality case is of primary importance to determine whether there
was a breach of section 9. This context in which the court must judge an
equality case is formed, first, by the constitutional text in its entirety.
Second, the court must take into account the country’s recent history,
particularly the systematic discrimination suffered by black people under
apartheid 18 as well as systematic patterns of discrimination on grounds
other than race that have caused, and may continue to cause, considerable
harm.19 Any consideration of whether a legally relevant differentiation
actually constitutes a breach of section 9 must therefore take into account
the history of the impugned provision as well as the history of the group or
groups to which the complainant belongs. Taking this context into account,
the court determines whether the legally relevant differentiation aims to
create or perpetuate patterns of group disadvantage, or whether it aims to
break down these structural inequalities and thus reach for true or
substantive equality. If the latter is the case, the court will be reluctant to
declare the measures unconstitutional or unlawful.20
Because the court’s approach requires a contextual analysis, it may thus
take into account the ongoing structural inequality in society when deciding
on the unfairness of the discrimination.21 The court’s contextual or
remedial approach acknowledges that inequality results from complex
power relations in society. It appears to view the law as having an important
role in reordering these power relations in ways which strive to ensure that
all individuals are treated as if they have the same moral worth.
Disadvantage here, then, is not equated with different treatment of
individuals who are born free and equal. Disadvantage is rather equated
with some harmful impact, whether direct or indirect, that the
differentiation between groups might have on a set of complainants within
the historical context of South Africa.22
As mentioned above, the focus is on the impact of the treatment instead
of the treatment itself. Substantive equality is remedial in nature and aims to
overcome the effects of past and ongoing prejudice and discrimination. It
requires a retreat from legal formalism and a focus on the underlying
purpose of the right to equality – what harm it seeks to address – as well as
the values underlying equality. The harm to be addressed rests on at least
three pillars:
• the culturally constructed ideology of differences based on the belief in
the superiority of dominant groups and the inferiority of non-dominant
groups
• the economic exploitation and disempowerment of those without power
because of their race, sex, gender, sexual orientation or other attributes
• in the South African context, also the previous political
disenfranchisement of black South Africans.23

PAUSE FOR REFLECTION

Distinguishing between formal equality and

substantive equality
To distinguish between formal equality and substantive
equality, it may be helpful to focus on a specific example.
Where a guesthouse catering to gay and lesbian tourists
refuses to accommodate any heterosexual clients, that
guesthouse would be treating people differently based on
their sexual orientation. A heterosexual couple who are
denied accommodation at the guesthouse may feel that
they have been discriminated against on the basis of their
sexual orientation as they have been denied
accommodation purely because they are heterosexual. A
court that adheres to a formal notion of equality may have
to find in favour of the heterosexual couple on the basis
that the guesthouse treats gay men and lesbians differently
from heterosexuals to the detriment of the latter group.
Formally, the guesthouse rule denies the heterosexual
couple a benefit that is not denied to gay men and
lesbians.
A court that embraces a substantive notion of equality
may look at the larger social and economic context. The
court may acknowledge that gay men and lesbians
continue to suffer from prejudice, stigmatisation and
discrimination. They may therefore feel vulnerable and
exposed in situations where they are required to book into
a guesthouse along with heterosexual clients. In an
ordinary guesthouse, gay and lesbian couples may fear
being subjected to the prejudices (presumed or real) of
non-homosexual clients. This may inhibit them from
showing affection for one another and may detract from
their enjoyment of their stay.
The guesthouse in our example aims to provide a safe
space for gay men and lesbians where couples can openly
express physical affection for one another and interact in
loving and intimate ways with each other as heterosexual
couples do every day in public. They can do so in a
manner in which they may not be able to do when they fear
the judgment of heterosexuals staying at the
establishment.
The court embracing substantive equality may find that
this different treatment is not in breach of the equality
guarantee. Heterosexual couples will have no problem in
 finding alternative accommodation because there is no
widespread discrimination against them in society. The
guesthouse rule will not send a signal that heterosexuals
are somehow less worthy of concern and respect than gay
men and lesbians. The court will take into account the
broader context. This context includes the fact that
heterosexuals are not generally believed to be
marginalised or suffering from patterns of discrimination,
disadvantage or harm. In addition, different treatment will
not establish new patterns of discrimination, disadvantage
and harm by a powerful group over a disempowered and
vulnerable group. The court may therefore well dismiss a
complaint of discrimination brought by a heterosexual
couple.24 For exactly the same reasons, the court will find
a guesthouse that prohibits black people from staying at its
establishment guilty of discrimination as such an exclusion
will perpetuate long-standing patterns of discrimination and
prejudice.

In the following sections we first set out the basic assumptions underlying
the substantive approach to equality as well as the values implied by the
right to equality. We then focus on two distinct situations in which the right
to equality arises:
• cases where individuals are treated differently but where this different
treatment does not explicitly address the effects of past and ongoing
prejudice and discrimination
• cases where the different treatment is explicitly justified on the grounds
that it addresses the effects of past and ongoing prejudice and
discrimination (so-called affirmative action measures or better referred to
as redress measures).
We also discuss the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA).25 The PEPUDA gives legislative effect to
section 9 of the Constitution and is often relied on instead of section 9 itself.
12.2.2 Differentiation and discrimination
The idea of differentiation lies at the heart of South Africa’s equality
jurisprudence.26 Not all forms of differentiation are constitutionally
problematic: relatively benign forms of differentiation between people or
groups of people permeate human relations in a modern society and the
Constitution does not usually prohibit the law from making such
distinctions. A modern state is required to regulate the affairs of its
inhabitants extensively. It is impossible to do so without differentiation and
without classifications that treat people differently and which affect people
differently.27
Moreover, private individuals or institutions differentiate daily between
individuals in many ways. These numerous forms of differentiation are
seldom problematic from a constitutional law perspective and the vast
majority of cases in which people or groups of people are treated differently
from one another are legally benign.
However, some forms of differentiation by the state or by private parties
do infringe on the right to equality guaranteed in section 9 of the
Constitution. As we shall see, the Constitutional Court draws a sharp
distinction between mere differentiation dealt with in terms of section 9(1)
of the Constitution and discrimination dealt with in terms of section 9(3) of
the Constitution.
The consequence of this distinction between mere differentiation and
discrimination is that questions around discrimination dominate the
Constitutional Court’s approach to equality.28 It is clear that for a claimant
to succeed with an equality challenge, it will usually (but not in every case)
be necessary to frame a claim about a breach of section 9 of the
Constitution as one of discrimination rather than in terms of a general claim
to equality or a claim of differentiation. The Constitutional Court has
chosen to focus its equality jurisprudence on the notion of discrimination
rather than on the more ‘complex’, ‘elusive’ and ‘empty’ 29 notion of
equality or on all cases of differentiation. This choice stems from a need to
provide a suitably ‘structured’ and ‘focused’ legal framework that will
provide an effective and easy-to-apply legal test to determine whether the
equality guarantee has been breached.30
 The Constitutional Court views the concept of non-discrimination as
providing the legal mechanism that will deal effectively with egregious
forms of inequality and different treatment while avoiding the opening of
the litigation floodgates. By focusing on targeted forms of discrimination
instead of on the more general equality guarantee dealing with all forms of
differentiation, the Court aims to discourage well-resourced litigants in the
private sector from challenging every conceivable form of legal
differentiation. The Constitutional Court therefore focuses on the
importance of non-discrimination and sees it as a safe and more or less
predictable way of dealing with the difficult issues of equality with which it
has been, and no doubt will continue to be, confronted.31

12.2.3 Values underlying the right to equality: human

dignity and equality
The judges of the Constitutional Court have unanimously embraced the idea
that at its core, the equality guarantee protects individuals’ human dignity.
The centrality of the value of human dignity for equality jurisprudence was
first established in President of the Republic of South Africa and Another v
Hugo where the Court placed human dignity at the heart of its equality
enquiry.32 The Court stated:
The prohibition on unfair discrimination in the interim
Constitution seeks not only to avoid discrimination
against people who are members of disadvantaged
groups. It seeks more than that. At the heart of the
prohibition of unfair discrimination lies a recognition
that the purpose of our new constitutional and
democratic order is the establishment of a society in
which all human beings will be accorded equal dignity
and respect regardless of their membership of particular
groups (our emphasis).33
The Court accepts that the equality guarantee protects individuals from
differentiation based on one of the specified grounds in section 9(3) or
similar forms of differentiation that have the potential to infringe on a
person’s fundamental human dignity. Conversely, where differentiation is
not based on one of the specified grounds and where it does not have the
potential to infringe on a person’s fundamental human dignity, there will be
no unfair discrimination in terms of section 9(3) of the Constitution.
The Constitutional Court has provided quite a broad and expansive
definition of human dignity. It has stated that human dignity will be
impaired whenever a legally relevant differentiation treats people as
‘second-class citizens’, ‘demeans them’, ‘treats them as less capable for no
good reason’, otherwise offends ‘fundamental human dignity’ or where it
violates an individual’s self-esteem and personal integrity.34 This idea of
dignity is based on the notion that all human beings have an equal moral
worth – the right to be treated with equal concern and respect – and derives
from the work of Immanuel Kant.35
This view of equality as inextricably linked to the concept of dignity has
been reiterated in subsequent Constitutional Court judgments 36 and has
further been elaborated on, most notably in Prinsloo v Van der Linde and
Another.37 However, in this case, the Court gave an even more expansive
interpretation of when treatment will be discriminatory. It added that not
only an infringement of human dignity, but also ‘other forms of
differentiation, which in some other way affect persons adversely in a
comparably serious manner’, could constitute a harm prohibited by the non-
discrimination provisions of the Constitution.38 Where legal provisions
deny this equal moral worth, the Court will find that there has been an
impairment of human dignity or that the complainant has been adversely
affected in a comparably serious manner. This is a confirmation of
Malherbe’s proposition that ‘equality without dignity is inhuman’.39

CRITICAL THINKING

Does South African dignity-based equality

jurisprudence narrow the understanding of the
right to equality?
Some academics have criticised the South African dignity-
based equality jurisprudence on the basis that it can
narrow the understanding of the right to equality to an
abstract and individualised notion about the personal
feelings of a litigant who feels hurt by prejudice and
misrecognition.40 The fear is that the reliance on the value
of dignity would focus equality jurisprudence on the
individual harm caused by prejudice as well as on the
narrow need to address such harms. This narrow focus on
the individual and the harm suffered by him or her, so the
argument goes, runs the risk of ignoring the larger social
and economic disadvantages as well as the systemic
nature of inequality in South African society.
For example, some people argue that a dignity-based
approach to equality can powerfully address issues of
discrimination against gay men, lesbians and other sexual
minorities. The reason for this is that such discrimination is
rooted in moral disapproval and results directly in an affront
to their dignity and identity.41 By contrast, the fear is that
discrimination against women or black people can often not
be captured fully in terms of a dignity-based analysis. Such
discrimination results from a complex mix of superficially
neutral laws, entrenched structural inequality and cultural
stereotypes.42 South Africa has a sexist, racist and
homophobic past. Prejudices based on race, gender and
sexual orientation continue to linger in our society.
Discrimination faced by many women, black people and to
a lesser extent gay men and lesbians, thus also has an
economic component. This component cannot easily be
captured with reference to an infringement of a person’s
dignity.
However, the Constitutional Court’s contextual approach
to equality has allowed it to move beyond a narrow,
individualised notion of equality focused on individual
personal autonomy, psychology and self-worth. This
 contextual approach has permitted a systematic
understanding of individual, group-based, civil, political and
material inequalities. Dignity is thus linked to the
achievement of a world in which the basic needs of all
people will be met.43 In Khosa and Others v Minister of
Social Development and Others, Mahlaule and Another v
Minister of Social Development,44 the Constitutional Court
recognised that the dignity of individuals will not be
respected if the material conditions do not exist to allow for
such a respect for dignity. It also suggested that dignity is a
group-based concept involving a collective concern for the
well-being of others and that the allocation of resources is
important for considering equality concerns:
Sharing responsibility for the problems and consequences of
poverty equally as a community represents the extent to which
wealthier members of the community view the minimal well-being
of the poor as connected with their personal well-being and the
well-being of the community as a whole. In other words, decisions
about the allocation of public benefits represent the extent to which
poor people are treated as equal members of society.45

Apart from the value of dignity, the Constitutional Court has also affirmed
that the value of equality is relevant for any understanding of section 9 of
the Constitution especially when dealing with the restitutionary aspects of
equality. In Van Heerden, the Constitutional Court affirmed the
Constitution’s commitment to strive for a society based on social justice.
Equality thus requires more than equal protection before the law and non-
discrimination, ‘but also the start of a credible and abiding process of
reparation for past exclusion, dispossession, and indignity within the
discipline of our constitutional framework’.46 As the Court per Moseneke
DCJ argued:
What is clear is that our Constitution and in particular
section 9 thereof, read as a whole, embraces for good
reason a substantive conception of equality inclusive of
 measures to redress existing inequality. Absent a positive
commitment progressively to eradicate socially
constructed barriers to equality and to root out
systematic or institutionalised underprivilege, the
constitutional promise of equality before the law and its
equal protection and benefit must, in the context of our
country, ring hollow.47

12.2.4 Attacking the constitutionality of a legislative

provision: section 9 of the Constitution

12.2.4.1 Introduction
Different legal tests apply to different situations in which an equality
complaint is lodged. First, where a distinction between different people
stems from a legislative provision and the litigant asks a court to declare
that legislative provision invalid, the court has to rely directly on
sections 9(1), 9(2) or 9(3) of the Constitution. These three sections apply in
different situations and, as we shall see, require the court to apply a
different legal test in each case. It is important to identify whether a set of
facts dealing with a complaint about different treatment between people or
groups of people fits under section 9(1), 9(2) or 9(3). The court then applies
the relevant test applicable to that set of facts. When attacking the
constitutionality of a legislative provision, it is therefore important, at the
outset, to determine whether the attack will be based on section 9(1), 9(2) or
(9(3). A direct reliance on section 9 is required in such cases because
legislation can only be invalidated by invoking the Constitution itself. This
is because the Constitution is supreme and therefore superior to the
legislative provision under attack.
Second, where a litigant attacks the actions of a public official or private
entity on equality grounds but this attack does not relate to the possible
invalidation of a legislative provision, the litigant will have to rely on the
relevant provisions of the PEPUDA. This is because the principle of
subsidiarity requires a litigant who claims that one of his or her
constitutional rights has been infringed must rely on legislation adopted to
protect that right. The litigant may thus not rely on the underlying
constitutional provision directly. Unless the litigant wants to attack the
constitutionality of the legislative provision itself, he or she cannot rely on
section 9 as the PEPUDA gives effect to section 9 and will be the first port
of call.48 Given that the PEPUDA gives effect to section 9 of the
Constitution, it must be interpreted in the light of the Constitutional Court’s
jurisprudence on section 9. We therefore first discuss the Constitutional
Court’s jurisprudence regarding section 9 before turning to the PEPUDA as
the general principles discussed when dealing with section 9 apply in the
interpretation of the PEPUDA.
As noted above, section 9 deals with three distinct situations. First,
section 9(1) applies in cases where the legislative provision differentiates
between people or groups of people, but this differentiation is not based,
either directly or indirectly, on one of the grounds listed in section 9(3) or
on an analogous ground that is similar to the grounds explicitly listed in
section 9(3). We refer to such cases as cases of mere differentiation.49
In Prinsloo, the Court explained that it would be impossible to govern a
modern country like South Africa efficiently and to harmonise the interests
of all its people for the common good without differentiation and
classifications which treat people differently and affect them differently.
Such differentiations which are necessary to regulate the affairs of a
country, or mere differentiations, will, according to the Court, rarely
constitute discrimination in and of themselves.50 Mere differentiation
therefore refers to the many distinctions that the law makes that have
nothing to do with the kind of discrimination based on race, sex, gender or
other grounds listed in or similar to those listed in section 9(3) of the
Constitution. For example, where the legislative provision makes a
distinction between lawyers and doctors, a litigant attacking that provision
will have to rely on section 9(1) as section 9(3) does not explicitly prohibit
discrimination against a group of people who are identified as doctors or
lawyers.
Second, section 9(2) applies to cases where the legislative provision
explicitly aims to give effect to restitutionary measures. These measures are
also popularly known as affirmative action measures. If a legislative
provision aims to implement a restitutionary measure, the court first tests
the constitutionality of that provision under section 9(2). If the
restitutionary measure complies with section 9(2), that is the end of the
enquiry. The provision is constitutionally valid and cannot be tested against
section 9(3).51 As we shall see, this is important as the onus of proving or
disproving an infringement of section 9 may differ depending on whether a
litigant relies on section 9(2) or section 9(3). However, if the legislative
provision does not comply with section 9(2), the court can still test it
against section 9(3). In other words, the court uses section 9(2) to test
legislative provisions that implement affirmative action measures. However,
when it finds that such measures do not comply with section 9(2), the court
can test their constitutionality against section 9(3).
The third instance is whenever the different treatment is based either
directly or indirectly on one or more of the grounds listed in section 9(3) or
on a ground that the Court has found to be sufficiently similar to the
grounds listed in section 9(3) to be considered under that section. Also, the
different treatment should not form part of an affirmative action programme
or policy. Here, the court must test the provision against section 9(3). In the
case of listed grounds or grounds sufficiently similar to the grounds listed in
section 9(3), it is not necessary to invoke section 9(1) first. The litigant
complaining of discrimination as opposed to complaining about mere
differentiation may directly invoke section 9(3).52 As noted, this situation
is distinguished from mere differentiation as it relates to different treatment
on the basis of race, sex, gender, sexual orientation or one of the other
problematic distinctions and is referred to as discrimination.
In the sections that follow, we deal with the test to be applied to the three
situations:
• differentiation that amounts to mere differentiation (section 9(1))
• different treatment mandated to advance an affirmative action policy
(section 9(2))
• differentiation that amounts to discrimination but is not part of an
affirmative action policy (section 9(3)).
Although the Constitutional Court stated that it would be neither desirable
nor feasible to separate sections 9(1) and 9(3) into watertight compartments,
it nevertheless focused on section 9(1) as dealing with mere differentiation
while section 9(3) was earmarked as dealing with unfair discrimination.53
Table 12.1 Framework for challenging different treatment

Legal nature of Example Legal provision relied

differentiation on

Legislative provision A legal provision that Section 9(1) of the

constituting mere requires cigarette products Constitution
differentiation but not alcohol products to
carry warning labels

Legislative provision Employment Equity Act Section 9(2) of the

introducing an affirmative (EEA) 54 provisions Constitution
action programme requiring certain employers
to institute affirmative action
policies

Legislative provision that A legislative provision that Section 9(3) of the

distinguishes directly or grants women but not men Constitution
indirectly between groups the right to a certain
based on grounds listed in number of days of
section 9(3) or analogous pregnancy leave
grounds

An act by a private or public A holiday resort which Section 14 of the

body or person that allows only Christians to PEPUDA
distinguishes directly or visit or an affirmative action
indirectly between groups of policy of a small company
people based on grounds
set out in section 9(3) or
analogous grounds

12.2.4.2 Mere differentiation: section 9(1)

Given the Constitutional Court’s focus on discrimination when dealing with
equality claims, it is not surprising that cases of mere differentiation are not
easy to prove. Recall that cases of mere differentiation are dealt with in
terms of section 9(1) which states: ‘Everyone is equal before the law and
has the right to equal protection and benefit of the law.’ According to the
Constitutional Court, this section means:
• first, that everybody is entitled, at the very least, to equal treatment by
our courts of law
• second, that none should be above or beneath the law and that all are
subject to law impartially applied and administered.55
Examples of mere differentiation include distinctions between different
types of prisoners or distinctions between different classes of taxpayers.
Impugned provisions involving mere differentiation will fall foul of both
aspects of section 9(1) 56 if a litigant can show that the state did not act in a
rational manner when differentiating between individuals or groups of
individuals. This means that the state ‘should not regulate in an arbitrary
manner or manifest “naked preferences” that serve to legitimise
governmental purpose’.57 What is required is that the state functions ‘in a
rational manner’ 58 and that it does not distinguish between people or
groups of people in a way that is irrational.
This requirement of rationality has emerged as an extremely stringent
test which is very difficult for any plaintiff alleging mere differentiation to
overcome.59 This requirement is made even more apparent by the
Constitutional Court’s insistence that there is no need for the state or other
relevant actors to prove that the objective could not have been achieved in a
better or different way in such a case.60 As long as any rational
relationship, in other words, the absence of arbitrariness,61 is demonstrated
between the purpose sought to be achieved by the impugned provision and
the means chosen by the provision, the Court will find that the
differentiation does not infringe section 9(1) of the Constitution.62
Rationality is part of accountability and justification in a democratic
state. It is important in a rationality enquiry ‘to identify and examine the
specific government object sought to be achieved by the impugned rule of
law or provision’ and a court will not rely on a generic general purpose
identified.63 However, all the state has to show is that the purpose was
neither arbitrary nor irrational. It does not have to show that the purpose
pursued was a wise one or one with which the Court agrees.64
 Where there is no discernible purpose for the differentiation, the Court
will find the legislative provision to be in breach of section 9(1). For
example, in Ngewu and Another v Post Office Retirement Fund and
Others,65 the Court declared certain sections of the Post Office Act 66
unconstitutional as they breached section 9(1) of the Constitution. This was
because the impugned provisions treated divorced spouses of employees of
the Post Office differently from other divorced spouses whose treatment is
regulated by other legislation. The Constitutional Court found that this
differentiation was irrational as it had no basis. The different treatment was
an anomaly that could not be explained in a rational manner.67 As the
different treatment was not based on a ground like race or sex or gender, but
on whether a person worked for the Post Office or another employer, the
Court relied on section 9(1) to invalidate the provisions of the Post Office
Act. However, because the rationality test is applied relatively strictly, the
Court does not often invalidate legislation because it breaches section 9(1)
of the Constitution.

12.2.4.3 Redress measures (affirmative action):

section 9(2)

12.2.4.3.1 Basic approach

The question of the exact scope of constitutionally permissible redress
measures (affirmative action) is one of the most hotly debated and, for
some, most controversial, constitutional law issues. Disagreement on this
issue can be traced back to different views about the extent to which the
harmful consequences of racism and racial discrimination which were
imposed by the apartheid government continue to render present-day South
Africa a fundamentally unfair place for many (if not all) black South
Africans. If we accept that the harmful effects of past racial discrimination
stubbornly persist in society and that racism continues to disadvantage
black South Africans, the need for redress measures to overcome this will
be apparent. For those who deny these facts, however, redress measures –
especially redress measures based on race – represent a form of reverse
discrimination. As we shall see, however, the Constitutional Court has
clearly rejected the latter view in favour of the first. Section 9(2) states:
 Equality includes the full and equal enjoyment of all
rights and freedoms. To promote the achievement of
equality, legislative and other measures designed to
protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
This section recognises that the achievement of equality requires the state
and other powerful institutions in society to take positive steps to address
the deep social and economic inequalities in society. In addition, the state
and other powerful institutions must also address the structures and systems
in society that help to perpetuate this inequality. These structures and
systems prevent individuals from enjoying equal opportunities and benefits
that will allow them to flourish because opportunities and benefits are
available to some people but not to others in society.68
This recognition lies at the heart of the notion of substantive equality
discussed above. As indicated above, the substantive notion of equality
recognises that there are uneven race, class and gender levels and forms of
social and systemic differentiation. This type of differentiation continues to
persist in South African society and requires positive action to dismantle it
and to prevent the creation of new patterns of disadvantage.69 As the
Constitutional Court stated in Van Heerden, the precedent-setting case on
section 9(2), corrective or restitutionary measures are mandated by
section 9(2) as part of a ‘credible and abiding process of reparation for past
exclusion, dispossession, and indignity within the discipline of our
constitutional framework’.70
The United States anti-discrimination approach regards restitutionary
measures as an exception to the general equality and non-discrimination
guarantee. By contrast, the South African equality jurisprudence does not
view such measures as a deviation from or invasion of the right to equality
guaranteed by the Constitution. These measures are not reverse
discrimination or positive discrimination.71 Instead, corrective or
restitutionary measures are an integral part of our equality guarantee. They
aim to eradicate a system that perpetuates inequality and to address social
and economic inequality to achieve equality in the long term. South Africa
is a country in transition from a society based on inequality to one based on
equality.72 Thus, the constitutional order is committed to the transformation
of our society from a grossly unequal society to one in which there is
equality between men and women and people of all races. In this
fundamental way, our Constitution differs from other constitutions which
assume that all are equal and in so doing simply entrench existing
inequalities. This constitutionally mandated transformation is part of an
ongoing process. It is not an end in itself but a means to an end: the
achievement of equality in the long term.73
Of course, there are profound difficulties that will have to be confronted
in giving effect to the constitutional commitment of achieving equality. This
is because the measures that bring about transformation will inevitably
adversely affect some members of our society, particularly those people
coming from previously advantaged communities. However, as we shall
see, the interests of those people negatively affected by such remedial
measures must be balanced against the interests of those people who
suffered discrimination in the past and may very well continue to suffer
from discrimination today. This is why section 9(2) mandates positive
measures. This means section 9(2) ‘imposes a positive duty on all organs of
state to protect and promote the achievement of equality – a duty which
binds the judiciary too’.74 In the absence of ‘a positive commitment
progressively to eradicate socially constructed barriers to equality and to
root out systematic or institutionalised under-privilege, the constitutional
promise of equality before the law and its equal protection and benefit must,
in the context of our country, ring hollow’.75
A constitutional challenge to restitutionary measures – even based on
any of the grounds of discrimination listed in section 9(3) – must be tested
against section 9(2). Once a court has determined that the measures comply
with the requirements of section 9(2), they cannot be presumed to be
unfairly discriminatory and cannot be tested against section 9(3).76 This
means that if it is shown that measures comply with section 9(2), this is a
complete defence against any charge that the measures unfairly discriminate
against anyone.
 The onus for an enquiry into the constitutionality of restitutionary
measures differs from the onus in cases where it is alleged that a person has
been unfairly discriminated against on one of the grounds listed in
section 9(3) in a situation where the discrimination was not part of a set of
restitutionary measures. In the latter case, once a court has established that
there was indeed discrimination on one of the grounds listed in section 9(3),
the onus of showing that the discrimination is not unfair rests with the party
defending the different treatment. However, in cases where the
constitutionality of restitutionary measures is attacked, the onus rests with
the party who alleges that the measures are unconstitutional. Legislative and
other measures, which properly fall within the provision of section 9(2), do
not attract a presumption of unfairness.77

CRITICAL THINKING

The aim of redress measures: equality of

opportunity or equality of outcomes?
When considering the aim of redress measures (as with all
measures aimed at achieving substantive equality), the
question arises as to the exact end goal of such measures.
Are we striving to achieve equality of opportunity or
equality of outcomes? Fargher presents the following
thoughtful argument for the equality of outcomes:
If you lean just enough against the window of your business class
seat to discomfort yourself, you can see the shanty towns as you
come into land at Cape Town International Airport. South Africa is
unequal. And we know it. In fact, we are told in multiple headlines
that South Africa is the most unequal country in the world. But
what we aren’t told is what that means, why it matters and what we
should do to respond.

Inequality, as most people think of it, is simply the existence of

both rich and poor. In other words, there is some inequality in the
outcome of people’s lives. If we interrogate ourselves, I think many
people would find that it is not inequality of outcomes that is so
problematic. If I choose not to work and live a modest, subsistence
lifestyle, I don’t think many people would think I deserve to earn as
much as a teacher or doctor that works many hours a day. Really,
what many people find inherently objectionable is inequality of
opportunity.

Many libertarians will tell you this and I am sure a couple of CEOs
are nodding their head in agreement, thinking to themselves,
“That’s right. It’s not about taxing my income anymore, it’s about
fixing education so that everyone has the opportunity to work as
hard as I have for my money.” But in reality, there still seems to be
something so unsettling about driving from Alexandra township
through to Sandton. There seems to be something so wrong with
the inequality of outcomes in South Africa that must prompt us to
look past inequality of opportunity and focus on the sheer
inequality of outcomes. And there is.

I would argue that there are three primary reasons why South
Africa needs to address inequality of outcomes. First, the extreme
spectrum of wealth in South Africa means the very poor simply do
not have sufficient means to lead a dignified and humane life. We
have a responsibility to provide a minimum standard of life to our
fellow human beings. Second, South Africa is not a society where
inequality of outcomes has arisen as the result of chance.

Instead, we can identify the unjust acts under apartheid and

colonialism that specifically engineered the repression and robbery
of black people in our society. While most of the laws may be gone,
there remains the obligation to ensure corrective justice. This
raises difficult questions of blame, guilt and how one practically
ensures restitution in the face of intergenerational injustice.

These two questions of basic standards of living and restitution,

whether land or money, have been debated at length. I, however,
think there is a third, more nuanced reason that demands our
consideration. The third reason is that inequality of outcomes
fundamentally obscures our conception of what it means to have
equal opportunity and thus hinders our ability to deliver a society
in which we maximize equality of opportunity.

Even a society with perfect equality of opportunity suffers from the

fact that unequal outcomes result in unequal power distribution.
This power is used to favour elites. At first, I am sure your thoughts
turned to business deals going to the politically connected or
corporates colluding for illegitimate profits. Rather turn your
thoughts to the more subtle and morally ambiguous ways in which
society operates.
What about the inheritance you received or plan to leave? What
about places in top schools for children of alumni, large donors or
simply those whose parents can afford it? Or the jobs and
internships you gave to the son of a friend or the daughter of a
colleague?

Even well intentioned power brokers that explicitly work to create a

society truly characterized by equality of opportunity are
necessarily required to decide what the concept of opportunity
means and what the barriers to equality of opportunity are. And
extreme inequality of outcomes means that those in power may not
know what the barriers to opportunities are. In South Africa’s case,
this is at an extreme.

The result of apartheid is a society that is starkly segregated in

such a way that private power, economic class, culture, geography
and race are largely divided along the same lines. The result is that
white middle-class South Africans can live their lives in such a way
that they rarely have to interact on the terms of the average, poor
black South African. Sure, increasingly there are instances where
the `best friend‘ might be black but he is likely to have interacted
on the terms of white South Africans: he’s middle class, he
attended his model C school and forked out the R50 to go watch
movies at the mall.

This is a dangerous situation where the influential in society – and

here I mean us: the white professionals, professors, business
leaders – do not understand the extent and nature of the inequality
of opportunities. In fact, without structures to ensure a proliferation
of views of what the conception of equal opportunity is, it is
difficult to even know what needs to be done to ensure it … .

Furthermore, at the many interviews I have done in my life, almost

every company says they want a candidate who will get on with the
team, fit into the company’s “culture” or who the boss will enjoy
spending 10 hours a day working with. How can that person be a
poor black person if the rest of the team are white, middle-class
men who have never engaged on the terms of the average black
South African?

Similarly, it’s often asked why Africans rarely turn entrepreneurs

and seize the opportunities that BEE has offered. But the decision
of striking it out on your own is heavily influenced by your attitude
toward risk, your role models and your community’s expectations.
Can you even understand the barriers to equal opportunity in
entrepreneurship that community and personal mentalities impose
on someone who’s grown up in a society characterized by
generational destitution versus someone who’s been surrounded
by successful business people?

What this argument should illustrate is that there exists an inherent

tension between equality of opportunity and equality of outcomes.
Being aware that inequality of outcomes limits our ability to ensure
a society that strives for equality of opportunity, we may need to
adopt policies that prima facie work against equality of
opportunity.

For example, we need AA appointments in companies so that that

person will one day be in management and able to say, “These are
the difficulties people growing up in the townships of Eldorado
Park face. I understand them and so I am not adverse to the person
who offers me a soft handshake and I love talking with her about
memories of shisa nyama on Sundays”.

To what extent we need to make that trade-off depends on how well

we understand the lives of our fellow countrymen. Unfortunately in
South Africa, there are few public spaces we all interact in, few
public goods we all share and cross race, class and cultural
understanding must be one of the poorest in the world.

This reality needs to inform our discussions of policy in general.

When we consider policies like a year of compulsory community
service for school-leavers, most of the debate surrounds the
economic impact but what about the role such a policy would have
in creating a space where the poor and the rich, black and white,
interact? Or should all school-goers learn an African language?

While personally I thought it was a terrible idea, with little to no

direct economic benefit, I have come to realise that perhaps in the
context of allowing our future power brokers to interact and
understand South Africa on the average South African’s term, it
could be immensely valuable.

Alexis de Tocqueville, a French philosopher, remarked when he

arrived in America that he’d never seen a country so free and
equally led. He wasn’t amazed by the fact that everyone earned the
same, but that the equality meant that leaders governed whilst fully
cognizant of the circumstances of their fellow men.

Inequality, of both outcomes and opportunity, is so problematic in

South Africa because we have opportunities being ever suppressed
for the poor and a corporate and government leadership that is
becoming ever more out of touch with those realities.78
12.2.4.3.2 The test for redress (affirmative action) measures in terms of section 9(2)
To determine whether a set of corrective measures complies with
section 9(2) and is therefore constitutionally valid, a court will focus on
three distinct questions:
• Do the measures target persons or categories of persons who have been
disadvantaged by unfair discrimination?
• Are the measures designed to protect or advance such persons or
categories of persons?
• Do the measures promote the achievement of equality in the long term?
a) Do the measures target persons or categories of persons who have
been disadvantaged by unfair discrimination?
The first question focuses on the group that is being targeted for
advancement because it was previously subjected to unfair discrimination
and continues to suffer from the effects of that discrimination. With
section 9(3), the focus is on the effect of non-restitutionary discriminatory
measures on those people complaining of discrimination. By contrast, this
requirement asks whether the right group was targeted for advancement or
whether undeserving groups or individuals will benefit from the
restitutionary measures. A court asks whether the programme of redress
is designed to protect and advance a disadvantaged class. This means
that the measures of redress chosen must favour a group or category
designated in section 9(2). The beneficiaries, either individuals or
categories of persons who belong to an identifiable class defined by their
race, sex, gender, disability or sexual orientation, must be shown to have
been disadvantaged by unfair discrimination. Because the test focuses on
whether the group has been disadvantaged in the past by unfair
discrimination, such groups include black (rather than white) citizens;
women (rather than men); gay men and lesbians (rather than heterosexuals);
people living with disabilities (rather than able-bodied people); and people
living with HIV (rather than HIV-negative people).
The Constitutional Court has acknowledged the fact that it would be
difficult, impractical or undesirable always to devise a legislative scheme or
programme that ‘purely’ or precisely targets the affected classes. ‘Within
each class, favoured or otherwise, there may indeed be exceptional or “hard
cases” or windfall beneficiaries’.79 The Court thus acknowledges that not
all the members of a class targeted to benefit from restitutionary measures
may themselves have suffered from unfair discrimination or may have been
disadvantaged because of the effects of past discrimination. However, we
contend that as long as patterns of racism, sexism, homophobia or other
prejudices exist in society, even those members of a class who may be
economically privileged would normally still suffer from the effects of past
unfair discrimination. Nevertheless, not every single person who benefits
from a restitutionary programme needs to have been disadvantaged by
unfair discrimination. What is required is that an ‘overwhelming majority of
members of the favoured class are persons designated as disadvantaged by
unfair exclusion’.80

CRITICAL THINKING

Is the programme of redress designed to protect

and advance a disadvantaged class?
The case of Van Heerden revolved around a remedial
programme that targeted individuals who became
Members of Parliament (MPs) in 1994 by providing such
members with more advantageous pension benefits for a
period of five years. The programme excluded individuals
who were Members of the apartheid Parliament and
continued to serve in Parliament after 1994. The majority
judgment found that this remedial programme did indeed
meet this first requirement.
The minority judgment of Mokgoro J in Van Heerden
disagreed with the approach taken by the majority about
the precision with which a targeted class had to be defined.
Mokgoro J pointed out that in this case many beneficiaries
who became MPs in 1994 were not black but indeed white.
There were 251 members elected to the national
legislature for the first time in 1994. Of these, 53 were
white. This means that only 79% of the beneficiaries of the
higher rate were black. For the minority this meant that the
restitutionary measures were not tailored sufficiently
narrowly to pass the first leg of the section 9(2) test. At the
heart of this disagreement was a disagreement about the
level of scrutiny that the Court should impose on such
measures.81 Mokgoro justified her view as follows:
[S]ection 9(2) must be used only in appropriate cases and with
great circumspection. The vision of substantive equality and the
need for transformation cannot be underestimated. For that reason
section 9(2), as an instrument for transformation and the creation
of a truly equal society, is powerful and unapologetic. It would
therefore be improper and unfortunate for section 9(2) to be used in
circumstances for which it was not intended. If used in
circumstances where a measure does not in fact advance those
previously targeted for disadvantage, the effect will be to render
constitutionally compliant a measure which has the potential to
discriminate unfairly. This cannot be what section 9(2) envisages.82

A possible reason for the majority’s application of this

requirement in a relatively permissive manner may be its
recognition that for measures to fit snugly into the first
requirement set out above, the measures may well
explicitly have to target a group that has been unfairly
discriminated against. As Sachs J pointed out, in the
present case this was not done. Instead of race, the
measures distinguished between members of the
legislature who became members in 1994 and others who
were members of the non-democratic Parliament, avoiding
any mention of race. As Sachs J stated, ‘For the new
scheme to have distinguished on grounds of race or
previous political affiliation between individual persons in
this large and diverse new generation of members of
Parliament, would have been divisive and invidious.’ 83 By
using other criteria as a proxy for race (or sex or sexual
orientation), those who craft a remedial scheme may
choose not to rely on the very categories used in the past
to exclude and oppress people. This is an attempt to signal
that we should not accept these categories uncritically and
 that it is not advisable in the long term to entrench such
categories in law.
However, commentators have pointed out that race
remains relevant in South Africa. As De Vos wrote:
But race hovers not far from the surface in private or other
everyday settings: as an unspoken presence, a (wrongly) perceived
absence or as a painful, confusing, liberating or oppressive reality
in social, economic or other – more intimate – interactions between
individuals or between groups of individuals. In South Africa we
cannot escape the fact that – despite the best efforts of many –
race insinuates itself into our responses to situations and people.
Even when we claim that we have escaped the perceived shackles
of race, we are merely confirming its presence by our stated
yearning for its absence. And escaping poverty and joining the
middle class does not – as some have argued – free ‘black’ South
Africans from the effects of racial identity and race-based thinking.
When I sit at a restaurant with my companion and the waiter
presents me, and not him, with the wine list or the bill, should I not
assume that this is done because I am ‘white’ and he is ‘black’? (I
hasten to add that this has happened to me on many occasions,
regardless of the race of the waiter or, it must be said, regardless of
whether my companion is an actuary earning at least double my
academic salary, or a relatively impecunious graduate student.)
When I see a young man walking a dog through the streets of the
posh, overwhelmingly ‘white’, and affluent suburb of Bantry Bay in
Cape Town (as often happens in the morning when I drive to work),
will the story I make up about that man not differ depending on
whether he is ‘white’or ‘black’– even if, after a second or two, I will
be startled by the deeply problematic racial assumptions to which I
might have fallen prey, and will try to correct myself? 84

b) Are the measures designed to protect or advance such persons or

categories of persons?
The second requirement for a valid restitutionary programme is that the
measure must be designed to protect or advance those disadvantaged by
unfair discrimination. In essence, the remedial measures are directed at an
envisaged future outcome and must be designed to achieve that outcome.
The outcome could be to eradicate social and economic inequality between
groups as well as to eradicate the structures of advantage and privilege that
help to perpetuate such inequality. However, a court will not require the
defenders of the scheme to show that the measures are necessary to achieve
this goal. Nor will the court require the defenders to show that the measures
will definitely achieve the intended goals.
Instead, what is required is that the measures ‘must be reasonably
capable of attaining the desired outcome’ of addressing the effects of past
unfair discrimination.85 ‘If the remedial measures are arbitrary, capricious
or display naked preference, they can hardly be said to be designed to
achieve the constitutionally authorised end.’ 86 If it is clear that these
measures are not reasonably likely to achieve the end of advancing or
benefitting the interests of those who have been disadvantaged by unfair
discrimination, they would not constitute measures contemplated by
section 9(2).
It is also not required to show that the remedial measures are a necessity
to disfavour one class in order to uplift another. ‘They are not predicated on
a necessity or purpose to prejudice or penalise others, and so require
supporters of the measure to establish that there is no less onerous way in
which the remedial objective may be achieved. The prejudice that may arise
is incidental to but certainly not the target of remedial legislative choice.’
87 It is important to note that the onus here rests on the party trying to
convince the court that the remedial measures are unconstitutional and do
not comply with section 9(2). The person or institution attacking the
remedial measures will have to show that the measures are not reasonably
capable of achieving the stated redress goals. It is possible to do this if it
can be shown that the measures are arbitrary or ‘display a naked
preference’.88
c) Do the measures promote the achievement of equality in the long
term?
The third requirement for a valid remedial programme is probably the most
difficult and complex to grapple with but it is pivotal for determining the
constitutionality of the scheme. Whether a remedial scheme meets the
requirements of section 9(2) may well hinge on whether this last
requirement is met. We contend that this third requirement requires a value
judgment. A court would have to make this value judgment in the light of
all the circumstances. These circumstances include the history of
marginalisation and oppression of people based on race, sex, sexual
orientation and other grounds, the current social and economic status of
various groups previously unfairly discriminated against, as well as the
prevalence of racism, sexism, homophobia and other forms of
misrecognition still prevalent in society.
This third requirement asks whether the remedial measures promote the
achievement of equality in the long term. What is required is a balancing
of different interests: the interests of those people suffering from the effects
of past or ongoing unfair discrimination on the one hand, and the interests
of those people who benefitted from past unfair discrimination or continue
to benefit from the lingering effects of that discrimination on the other
hand. In his concurring judgment in the Van Heerden case, Sachs J
explained how to balance these interests as follows:
Courts must be reluctant to interfere with [remedial]
measures, and exercise due restraint when tempted to
interpose themselves as arbiters as to whether the
measure could have been proceeded with in a better or
less onerous way. At the same time, if the measure at
issue is manifestly overbalanced in ignoring or trampling
on the interests of members of the advantaged section of
the community, and gratuitously and flagrantly imposes
disproportionate burdens on them, the courts have a
duty to interfere. Given our historical circumstances and
the massive inequalities that plague our society, the
balance when determining whether a measure that
promotes equality is fair will be heavily weighted in
favour of opening up opportunities for the
disadvantaged. That is what promoting equality
(section 9(2)) and fairness (section 9(3)) require. Yet
some degree of proportionality, based on the particular
context and circumstances of each case, can never be
ruled out.89
In other words, a court will be slow to strike down remedial measures
targeting black South Africans, women, people with disabilities, gay men
and lesbians or other groups who have suffered from unfair discrimination
in the past. However, the court will not automatically find that such
measures comply with section 9(2). The court will have to look at the effect
that a measure has on the advantaged section of the community (white
citizens, men, able-bodied individuals, heterosexuals or other groups who
benefitted from past unfair discrimination). The court has to consider the
effect of the measure on those excluded by the measure in the context of our
broader society. The court may find that measures that completely exclude
or are aimed purely at punishing those people who belong to a group that
benefitted in the past disproportionately burden the previous beneficiaries
of discrimination. However, this does not mean that measures may not have
the effect of disadvantaging those who benefitted from the past system of
discrimination. As Justice Moseneke explained in Van Heerden:
It must be accepted that the achievement of this goal
may often come at a price for those who were previously
advantaged. Action needs to be taken to advance the
position of those who have suffered unfair discrimination
in the past. […] However, it is also clear that the long-
term goal of our society is a non-racial, non-sexist society
in which each person will be recognised and treated as a
human being of equal worth and dignity. Central to this
vision is the recognition that ours is a diverse society,
comprised of people of different races, different language
groups, different religions and both sexes. This diversity,
and our equality as citizens within it, is something our
Constitution celebrates and protects. In assessing
therefore whether a measure will in the long term
promote equality, we must bear in mind this
constitutional vision. In particular, a measure should not
constitute an abuse of power or impose such substantial
and undue harm on those excluded from its benefits that
our long-term constitutional goal would be threatened
(our emphasis).90
A court must therefore look at the effect the remedial measures will have on
the group or groups who may be negatively affected or who may not be
targeted by the measures. In this regard, there appear to be similarities
between this third requirement of the test and the test for unfair
discrimination in terms of section 9(3) discussed below.91 For example, a
programme aimed at addressing the effects of past racial discrimination
may negatively affect white South Africans. Employment equity legislation
or rules designed to accommodate more black students or women at a
university may affect some white applicants for jobs or university places
who may not be appointed or may be denied a place to study at the
university because of the remedial programme. This in itself will not
invalidate the programme. However, where the measures taken are so
extreme that they send a signal that the equal dignity of white applicants is
not respected, the programme may be invalidated. Thus, where an
admissions policy takes race into account and the effect of that policy is to
exclude the vast majority or all of the white applicants, the programme
would probably not pass constitutional muster.92 In effect, this is a value
judgment importing an internal fairness requirement into the test for a valid
remedial programme.93

PAUSE FOR REFLECTION

Fairness and proportionality considerations

when applying section 9(2)
The question whether the test for remedial measures as
set out by Moseneke J in the Van Heerden case acquires
‘bite’ from the third requirement set out above has elicited
some debate in academic circles. Pretorius argues that it is
unclear whether this requirement goes ‘beyond mere
rationality testing’, saying that this depends on our
interpretation of the Moseneke judgment and especially the
third requirement postulated by him.94 According to
Pretorius, the third requirement as explained by Moseneke
J and discussed above:
can be understood narrowly or broadly. If the ‘promotion of
equality’ in this context is understood narrowly, i.e. as synonymous
with remedial or restitutive equality, it will in effect not add anything
additional to the previous two rationality requirements and
cumulatively the s 9(2) conditions for the constitutional validity of
affirmative action will stay within the confines of a rationality
inquiry … The equation is also unequivocally implicit in the
observation that ‘it would be inimical to the pursuit of substantive
equality if the State was required to show that each restitutionary
measure that it enacted was fair, as would be required by s 9(3)’.
Affirmative action measures ought therefore to be judged solely in
terms of whether they serve the goal of ‘advancing those
previously disadvantaged’. If on the other hand the phrase ‘to
promote the achievement of equality’ in s 9(2) is understood more
broadly and inclusively, i.e. recognising and balancing the equality
aspirations of all, then considerations regarding the fairness and
proportionality of the impact of affirmative action measures will
inevitably surface. This can be illustrated with reference to the
majority opinion itself. … Moseneke J in his actual application of
the third s 9(2) criterion – and contrary to his initial starting point –
leaned towards the broader interpretation. The realisation of the
remedial objective is balanced with reference to the ideal of the
promotion of an inclusive ‘non-racial, non-sexist society in which
each person will be recognised and treated as a human being of
equal worth and dignity’. Mindful of this ‘constitutional vision’,
remedial measures should therefore ‘not constitute an abuse of
power or impose such substantial and undue harm on those
excluded from its benefits that our long-term constitutional goal
would be threatened’. That fairness and proportionality
considerations are invariably brought to the fore once this direction
is taken, is clearly evidenced by Justice Moseneke’s application of
the third requirement to the facts of the case. In his consideration
of the question whether the evidence revealed an abuse of power
or the existence of such a degree of substantial and undue harm
that could be construed as a threat to the realisation of the long-
term goal of equality, he referred to factors normally at issue when
the fairness of discriminatory measures is examined. He
considered the question ‘whether the adverse impact of the
employer contribution scheme on [the sub-class that the
complainant belonged to] is such as to render it unfairly
discriminatory’. He also specifically noted the relevance of the fact
that the complainant did not claim that the aggrieved class of
 parliamentarians is in any sense vulnerable or marginalised or that
in the past these parliamentarians were unfairly excluded or
discriminated against, or that the impugned pension scheme could
be considered as invasive of their dignity.95

We contend that this third requirement does require a

balancing of interests and therefore does import the
fairness requirement in a different guise into the
section 9(2) analysis. This does not mean that a court will
easily invalidate an affirmative action policy, but where the
policy overburdens the excluded group, it will have the
constitutional duty to do so.

12.2.4.4 Unfair discrimination: section 9(3)

In some situations a legislative provision differentiates between people or
groups of people on one or more of the grounds listed in section 9(3) or on
analogous grounds (discussed below) and therefore discriminates against an
individual or a group of people. Where this discrimination does not comply
with the requirements for a remedial programme in section 9(2), a court will
rely on section 9(3) to determine whether the discrimination is unfair and
hence in conflict with the equality provisions of the Constitution. In some
cases there may well be a rational relationship between the differentiation in
question and the governmental purpose which is proffered to validate it and
the requirements of section 9(1) are met. In other cases the measures may
purport to give effect to an affirmative action or remedial programme but do
not meet the requirements of section 9(2). In these cases, the court has to
ask whether the differentiation may still constitute unfair discrimination as
envisaged by section 9(3).96
In Harksen v Lane NO and Others, the Constitutional Court stated that a
determination of whether differentiation amounts to unfair discrimination in
terms of section 9(3) requires a two-stage analysis:
• First, the court has to determine whether the differentiation in fact
amounts to discrimination.
• Second, if it does, the court has to determine whether the discrimination
amounts to unfair discrimination.97
The Court thus distinguished between discrimination and unfair
discrimination, arguing that not all forms of discrimination are unfair.
Where discrimination can be proven not to be unfair, the legislative
provision thus does not fall foul of section 9(3).98
In the first of the two stages of analysis, a court must determine whether
the differentiation in fact constitutes discrimination. In Harksen, Goldstone
J further subdivided the enquiry following the arguments first set out in
Prinsloo. He stated that section 9(3) contemplates two categories of
discrimination and that courts should deal with each one in a different
way.99 The first category is differentiation based on one or more of the
sixteen grounds specified in section 9(3), in other words, grounds such as
race, sex, gender and sexual orientation. The second category is
differentiation on a ground not specified in section 9(3) but analogous to
such grounds.100 The Court in Harksen summarised the steps as follows:
(b)(i) Firstly, does the differentiation amount to
‘discrimination’? If it is on a specified ground, then
discrimination will have been established. If it is not on a
specified ground, then whether or not there is
discrimination will depend upon whether, objectively, the
ground is based on attributes and characteristics which
have the potential to impair the fundamental human
dignity of persons as human beings or to affect them
adversely in a comparably serious manner.
(b)(ii) If the differentiation amounts to ‘discrimination’,
does it amount to ‘unfair discrimination’? If it has been
found to have been on a specified ground, then
unfairness will be presumed. If on an unspecified
ground, unfairness will have to be established by the
complainant. The test of unfairness focuses primarily on
the impact of the discrimination on the complainant and
others in his or her situation.101

12.2.4.4.1 Does the differentiation amount to discrimination?

The text of section 9(3) prohibits unfair discrimination. This means that
discrimination can be either fair and hence constitutionally permissible, or
unfair and hence constitutionally impermissible. Although the term,
‘discrimination’, carries a pejorative meaning in general language,
section 9(3) – in line with the substantive notion of equality – does not
prohibit all forms of discrimination but only impermissible or unfair forms
of discrimination.102
The starting point of this enquiry is the text of section 9(3) which sets out
no less than 16 prohibited grounds of discrimination, namely race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language
and birth. When a legislative provision differentiates against anyone or any
group on any of these grounds, a court will find that the differentiation
amounts to discrimination. The court must determine objectively whether
differentiation has occurred on a specified or an unspecified ground.103
This means that the intention of the alleged discriminator is not relevant to
the enquiry as to whether discrimination occurred. (However, intention may
be relevant to determine whether the discrimination was fair or unfair.104)
The court has to decide whether the differentiation is based on one of the
specified grounds listed in section 9(3), for example whether the legislative
provision distinguishes between individuals who are black or white; male or
female; gay or straight; able-bodied or disabled. Once the court has
established that the distinction is indeed based on one of these 16 listed
grounds, it will assume that the differentiation is discriminatory. However,
the party seeking to uphold the validity of the legislative provision can still
show that the discrimination is not unfair. This is so because section 9(5)
explicitly states that ‘[d]iscrimination on one or more of the grounds listed
in subsection (3) is unfair unless it is established that the discrimination is
fair’.105 This means that a finding that there was discrimination will never
end the enquiry as one of the parties then has to try to convince the court
that the discrimination is fair or unfair as the case may be.
It is important to note that section 9(3) does not only prohibit unfair
discrimination on the grounds specifically listed in that section. Section 9(3)
also prohibits unfair discrimination against anyone on one or more grounds,
‘including’ those listed in section 9(3). The word ‘including’ suggests that
the list set out in section 9(3) is not a closed list and that distinctions made
between people or groups of people on the basis of other grounds not listed
may also amount to discrimination. Such grounds are called analogous
grounds. This allows the court to discover new forms of discrimination not
explicitly recognised by the drafters of the Constitution.
A court is required to make an objective assessment about two important
questions to determine whether discrimination has occurred on an
analogous ground:
• First, the court must determine whether the differentiation relates to the
unequal treatment of people based on other ‘attributes and characteristics
attaching to them’ which are not related to the specified grounds but are
nevertheless comparable to them.106
• Second, the court has to determine whether this differentiation has the
effect of treating persons differently in a way which ‘impairs their
fundamental dignity as human beings, who are inherently equal in
dignity’ or affects a person adversely in ‘a comparably serious
manner’.107
Regarding the first aspect of this enquiry, in Harksen the Constitutional
Court cautioned against a narrow definition of these attributes and
characteristics. The Court stated that when a court is called on to make such
a determination, it must look at whether the differentiation is based on
attributes and characteristics comparable in some way or another with those
specified grounds:
What the specified grounds have in common is that they
have been used (or misused) in the past (both in South
Africa and elsewhere) to categorise, marginalise and
often oppress persons who have had, or who have been
associated with, these attributes or characteristics. These
grounds have the potential, when manipulated, to
demean persons in their inherent humanity and
dignity.108
The second aspect of this enquiry is the impairment of human dignity or a
comparably serious disadvantage. It seems as if the Constitutional Court has
in mind an open-ended process in which it may discover, over time, more
differentiations which are not based on specified grounds but which, in its
opinion, are based on grounds similar to those specified. From the decided
cases it does seem, however, as though it will not be too difficult for
complainants who belong to a marginalised or vulnerable group to prove
that a differentiation was based on a characteristic which has the potential to
impair their fundamental human dignity or to affect them adversely in a
comparably serious manner. What is required is to show that the ground on
which a complainant is treated differently from others has the same
characteristics as those listed in section 9(3). In Hoffmann v South African
Airways,109 the Constitutional Court found that where HIV-positive
individuals are treated differently on the basis of their HIV status, this
constitutes discrimination on the analogous ground of HIV status. The
Court justified its reasoning as follows:
People who are living with HIV constitute a minority.
Society has responded to their plight with intense
prejudice. They have been subjected to systemic
disadvantage and discrimination. They have been
stigmatised and marginalised. As the present case
demonstrates, they have been denied employment
because of their HIV positive status without regard to
their ability to perform the duties of the position from
which they have been excluded. Society’s response to
them has forced many of them not to reveal their HIV
status for fear of prejudice. This in turn has deprived
them of the help they would otherwise have received.
People who are living with HIV/AIDS are one of the most
vulnerable groups in our society. Notwithstanding the
availability of compelling medical evidence as to how this
disease is transmitted, the prejudices and stereotypes
against HIV positive people still persist. In view of the
prevailing prejudice against HIV positive people, any
discrimination against them can, to my mind, be
 interpreted as a fresh instance of stigmatisation and I
consider this to be an assault on their dignity. The impact
of discrimination on HIV positive people is devastating.
It is even more so when it occurs in the context of
employment. It denies them the right to earn a living.
For this reason, they enjoy special protection in our
law.110

PAUSE FOR REFLECTION

What other grounds of often invisible prejudice

exist in society?
At present the Constitutional Court has recognised that
apart from HIV status, differentiation on the basis of not
being a South African citizen also constitutes an analogous
ground of discrimination.111 But what about other kinds of
distinctions that people generally make? Consider the
following extract from an article on the manner in which
people generally discriminate in favour of tall and attractive
people:
We can’t all be Brad Pitt or Angelina Jolie, or sculpted like a 6 foot
5 inch Olympic athlete, but what we may lack in looks, we can make
up in intelligence or personality. Or so the common argument goes,
which may be more myth than fact.

The British National Child Development study conducted by Daniel

Nettle of the Open University shows that the taller men are, the less
likely they were to be single or childless, concluding that taller men
are deemed more sexually attractive and more likely to find a mate.
“In choosing a husband, size matters,” Dr. Nettle argues, echoing a
well-known phrase. A study by researchers at the University of
Florida, the University of North Carolina and the University of
Pittsburgh found tall people earned considerably more money
throughout their careers than shorter workers. Not that all men who
are successful are necessarily tall or attractive. For example, Bill
Gates is 5 foot 9 inches; Jack Welch at 5 feet 8 inches and
billionaire Jim Pattison at barely 5 feet 7 inches. Most male movie
 stars such as Tom Cruise and Jack Nicholson are well below the
average male height …

According to Dr. Gordon Patzer, who has concluded 3 decades of

research on physical attractiveness, human beings are hard-wired
to respond more favorably to attractive people: “Good-looking men
and women are generally regarded to be more talented, kind,
honest and intelligent than their less attractive counterparts.”
Patzer contends, “controlled studies show people go out of their
way to help attractive people – of the same sex and opposite sex –
because they want to be liked and accepted by good-looking
people.” Even studies of babies show they will look more intently
and longer at attractive faces, Patzer argues.112

A university study conducted in the USA further found that

unattractive employees are more likely the subject of rude,
uncivil and even cruel treatment by their co-workers.113
Does this mean that how a person looks should become an
analogous ground on which discrimination could be
alleged? What other grounds of often invisible prejudice
exist in society and are taken for granted by all? Should we
develop the South African jurisprudence to take
cognisance of the various ways in which people are treated
badly not through any fault of their own, but because they
have attributes and characteristics that many people
implicitly or explicitly use to judge them more harshly?

The prohibition on discrimination applies to both direct and indirect

discrimination. This must not be confused with listed and analogous
grounds of discrimination discussed above. Direct discrimination occurs
where a provision specifically differentiates on the basis of either a listed or
an unlisted ground. For example, a legislative provision that differentiates
between men and women or between HIV-positive and HIV-negative
people discriminates directly. Thus, the previous common law definition of
marriage as being between a man and a woman explicitly excluded same-
sex couples from the definition and hence directly discriminated against gay
men and lesbians on the basis of sexual orientation.114
 Indirect discrimination occurs where certain requirements, conditions
or practices, while appearing neutral, actually have an effect or result that is
unequal or that disproportionately affects a group defined in terms of a
listed or analogous ground. For example, in the South African context with
its deeply entrenched racialised residential patterns, a measure that treats
people in one geographical area differently from people living in another
geographical area may constitute indirect racial discrimination. This was
the case in City Council of Pretoria v Walker 115 where the Constitutional
Court pointed out that it was necessary to include indirect discrimination in
the ambit of section 9(3) to ensure that we focus on the consequences rather
than the form of conduct. This is necessary because conduct which may
appear to be neutral and non-discriminatory may nonetheless result in
discrimination.116

PAUSE FOR REFLECTION

The problem of hidden forms of discrimination

In S v Jordan and Others (Sex Workers Education and
Advocacy Task Force and Others as Amici Curiae,117 the
majority of judges of the Constitutional Court rejected an
argument that a legislative provision that criminalised the
conduct of sex workers but not the clients of sex workers
discriminated indirectly against women. The relevant
section made a distinction between the prostitute and the
customer. It was argued that although the section targeted
all sex workers and was therefore gender neutral, it
nevertheless discriminated on the basis of gender because
it had a more severe impact on women as the vast majority
of sex workers are women and the vast majority of clients
of sex workers are men. The majority held that the sex
worker is engaged in the business of commercial sex and
that one of the ways of curbing commercial sex is to strike
at the ‘merchant’ by means of criminal sanctions. The
differentiation between the dealer and customer was a
common distinction that is made in a number of statutes
and therefore could not be said to constitute indirect
discrimination.118 The minority judgment disagreed with
this view. The judgment by O’Regan J and Sachs J
explains their position as follows:
Prostitutes and their customers engage in sexual activity, which is
one of the constitutive elements of the relationship between men
and women in all societies. As partners in sexual intercourse, they
both consent to and participate in the action which lies at the heart
of the criminal prohibition. There are only three differences
between them. The first is that the one pays and the other is paid.
The second is that in general the one is female and the other is
male. The third is that the one’s actions are rendered criminal by
[the impugned provision] but the other’s actions are not. Moreover,
the effect of making the prostitute the primary offender directly
reinforces a pattern of sexual stereotyping which is itself in conflict
with the principle of gender equality. The differential impact
between prostitute and client is therefore directly linked to a
pattern of gender disadvantage which our Constitution is
committed to eradicating. In all these circumstances, we are
satisfied that, as in Walker’s case, this is a case where an
apparently neutral differentiating criterion producing a markedly
differential impact on a listed ground results in indirect
discrimination on that ground.119

The importance of prohibiting indirect discrimination is that

often discrimination is hidden or disguised by those who
wish to discriminate: they utilise seemingly neutral criteria
to deny members of a certain group access to goods and
benefits in the hope that this discrimination will not be
detected. If indirect discrimination is not prohibited, it would
therefore make it very difficult to address the problem of
these hidden forms of discrimination. Whenever a club or
bar refuses a patron entry to that club or bar (as still
happens) 120 based on his or her dress, for example, and
that patron happens to be black, the excluded patron would
be able to show that indirect discrimination had occurred if
he or she could show that other white patrons who were
 dressed in a similar manner were admitted to the bar or
club.

12.2.4.4.2 Is the discrimination unfair?

Because the aim of section 9 of the Constitution is the pursuit of substantive
equality, not all forms of discrimination will be found to be
unconstitutional. Once it is shown that the differentiation constitutes
discrimination – either on a ground listed in section 9(3) or on an analogous
ground and whether direct or indirect – the enquiry moves to the question of
whether the discrimination is fair or unfair. As we have seen, when
discrimination occurs on a listed ground, it is presumed, in accordance with
section 9(5), that the discrimination is unfair and hence unconstitutional.
However, it is possible to rebut the presumption and establish that the
discrimination is not unfair.121 In other words, the complainant must
establish that the differentiation is based on one or more of the specified
grounds in order for the (rebuttable) presumption of unfair discrimination to
be of effect. Once this has been established, it then becomes the duty of the
other party to rebut the presumption of unfairness and, instead, to show that
the discrimination is in fact fair. If the discrimination is on a ground not
listed in section 9(3), the onus to prove that the discrimination is unfair
remains with the party attacking the constitutionality of the legislative
provision. Either way, one of the parties has to engage with the
requirements for fair versus unfair discrimination. The question of how to
determine whether discrimination is fair or unfair therefore remains
relevant, regardless of whether the discrimination is on a listed or unlisted
ground.
According to the Constitutional Court, the relevant party will be able to
prove the unfairness of the discrimination with reference to the fact that at
the heart of the prohibition of unfair discrimination lies a recognition that
the purpose of the Constitution is the establishment of a society in which all
people are accorded equal dignity and respect regardless of their
membership of particular groups. As the Court remarked in Harksen, the
prohibition on unfair discrimination ‘provides a bulwark against invasions
which impair human dignity or which affect people adversely in a
comparably serious manner’.122 This remark seems to imply that any
determination of the unfairness of the discrimination depends on whether
the human dignity of the complainant has been impaired.123 The Court
therefore stressed that what is important is that the enquiry focus on the
impact of the discrimination on the victim.124 To determine whether the
discriminatory provision has had an unfair impact on a complainant, a court
must consider various factors. Although there is no closed list of factors, the
Constitutional Court in the Harksen case highlighted the following factors
to guide this enquiry: 125
(a) ‘[T]he position of the complainants in society, whether they have
suffered in the past from patterns of disadvantage, whether the
discrimination in the case under consideration is on a specified ground or
not’: The examination is often backward looking so as to establish the
historical factors that led to patterns of group disadvantage and harm.126
A group of complainants can be vulnerable for a range of often
interrelated reasons. They can belong to a group that is economically
marginalised 127 and/or suffers from stigmatisation, marginalisation or
prejudice, for instance because of racism, sexism, homophobia or HIV
stigmatisation,128 and/or political minority status.129 It is more difficult
to show that discrimination against those who have suffered from past or
ongoing discrimination is fair than it is to show that discrimination
against those who have benefitted from past discrimination is unfair.
Therefore, discrimination against white people, men, heterosexuals and
able-bodied individuals is easier to justify as fair than discrimination
against black people, women, gay men and lesbians and disabled
individuals.
(b
) ‘[T]he nature of the provision or power and the purpose sought to be
achieved by it’: If the purpose of the provision is not directed at
impairing the complainants’ human dignity, but is aimed at achieving a
worthy goal such as, for example, the furthering of the achievement of
substantive equality or some other important societal or legislative goal,
this may tip the scales in favour of a finding that the discrimination is
 fair. For example, a legislative provision that prohibits blind people from
acquiring a driver’s licence discriminates against a group on the basis of
disability. However, this discrimination may well be found to be fair
because the discrimination is aimed at achieving an important purpose,
namely to ensure road safety. The more important and pressing the
purpose of the discrimination is, the more likely that a court will find the
discrimination to be fair.
(c) With due regard to the factors mentioned above as well as any other
relevant factors, a court must then ask to what extent ‘the discrimination
has affected the rights or interests of the complainants and whether it has
led to an impairment of their fundamental human dignity or constitutes
an impairment of a comparably serious nature’: The more invasive the
nature of the discrimination is, the more likely the discrimination will be
held to be unfair. For example, in National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others, the
Constitutional Court found that the discrimination against gays and
lesbians was ‘severe’ since ‘no concern, let alone anything approaching
equal concern’ was shown towards the group.130 In other words, a court
must ask whether, given the factors above, it would be fair to
discriminate against a group. It will not be fair if the discrimination
fundamentally affects the human dignity of the group of complainants.
This contextual test is aimed at protecting all individuals in society without
hampering the achievement of substantive equality which provides that
individuals belonging to different groups may have to be treated differently
in certain circumstances.
This analysis acknowledges the fact that a determination of unfair
discrimination cannot be made in the abstract. The determination must take
into account South Africa’s particular history as well as the structural
inequality in our society which promotes and perpetuates the subordination
of certain individuals and groups.131 Both the social and economic effects
of past discrimination as well as the continuing prejudice and stigmatisation
of people belonging to disfavoured groups frame this contextual enquiry
into the fairness or unfairness of the discrimination.
PAUSE FOR REFLECTION

An example of indirect discrimination

It will be helpful to consider an example to understand the
application of section 9(3). Imagine the South African
Police Service Act 132 is amended to regulate the
employment of police officers in the South African Police
Service (SAPS). A new section of the Act determines that
no one shall be appointed to the SAPS unless that person
is at least 1,79 m tall and weighs at least 75 kg. The
Minister argues that these requirements are necessary
because members of the SAPS encounter many strong
and violent individuals. Police officers therefore need to
have the physical strength to subdue suspects.
A constitutional attack on the provision could be
launched on the basis that the section indirectly
discriminates against women. This is because a
disproportionate number of women compared to men are
shorter than 1,79 m. Although the provision does not
directly exclude women from employment, the effect of the
provision would be to exclude most women from
employment in the SAPS. When considering whether this
discrimination is unfair, a court will have regard to the fact
that there is a long history of discrimination against women,
also in the employment field, which would weigh heavily in
favour of a finding of unfair discrimination. Given the fact
that the purpose of the provision, although seemingly
rational, is not pressing because women officers will be
armed and could be partnered with physically stronger
male colleagues, and given the severe impact of the
provision on women, a court may well find that the
discrimination is unfair.
12.2.5 Non-statutory imposed discrimination: the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
As we have seen, a litigant may only rely on section 9 of the Constitution
when attacking the constitutionality of legislative provisions. In cases
where a litigant alleges that discrimination has occurred on the basis of
conduct by a public official, organ of state or private individual or
institution, he or she has to rely on the Promotion of Equality and
Prevention of Unfair Discrimination Act (PEPUDA).133 The PEPUDA was
passed in fulfilment of section 9(4) of the Constitution which states: ‘No
person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.’ This section affirms
the horizontal application of section 9 to ensure that not only discrimination
by the state but also discrimination by private individuals or institutions is
prohibited.
Because of the principle of subsidiarity, litigants who claim that they
have been discriminated against but who do not wish to attack the
constitutionality of legislation must rely on the provisions of the
PEPUDA.134 In the absence of a direct challenge to the PEPUDA, courts
must assume that the PEPUDA is consistent with the Constitution and must
decide claims within its parameters.135 For example, a policy by a bar or
restaurant to reserve its facilities for white people only, a policy by a school
not to admit Rastafarian learners, and a decision by a Minister to employ
only male officials in his department potentially constitute invalid unfair
discrimination. However, these policies or decisions will have to be
attacked by relying on the provisions of the PEPUDA.
The general principles regarding the application of section 9 of the
Constitution, set out above, remain relevant as the courts must interpret the
PEPUDA in the light of the general principles developed by the
Constitutional Court regarding the enforcement of section 9. The enquiry
into unfair discrimination set out in the PEPUDA includes factors normally
taken into consideration when dealing with section 9 as well as factors
normally taken into account when dealing with section 36, the limitation
clause.136 This is because the PEPUDA deals with non-statutory instances
of alleged discrimination not based on a law of general application.
Section 1 of the PEPUDA defines discrimination as:
any act or omission, including a policy, law, rule,
practice, condition or situation which directly or
indirectly:
(a) imposes burdens, obligations or disadvantage on; or
(b) withholds benefits, opportunities or advantages
from,
any person on one or more of the prohibited grounds.
Prohibited grounds listed in section 1 of the PEPUDA include the 16
grounds listed in section 9(3) of the Constitution as well as:
(b) any other ground where discrimination based on that
other ground –
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a
person’s rights and freedoms in a serious manner
that is comparable to discrimination on one of
the listed grounds’.
In other words, the PEPUDA prohibits discrimination on both listed and
analogous grounds, just like section 9(3). Mirroring the section 9
jurisprudence, the onus of proving or disproving unfair discrimination
differs depending on whether the discrimination is on a listed or on an
analogous ground.137 The onus thus rests on the respondents to prove that
discrimination on a listed ground is fair.
Section 14 of the PEPUDA deals with the determination of fairness or
unfairness. The section states:
(1) It is not unfair discrimination to take measures
designed to protect or advance persons or categories
of persons disadvantaged by unfair discrimination or
the members of such groups or categories of persons.
(2) In determining whether the respondent has proved
that the discrimination is fair, the following must be
taken into account:
(a) The context;
(b) the factors referred to in subsection (3);
(c) whether the discrimination reasonably and
justifiably differentiates between persons
according to objectively determinable criteria,
intrinsic to the activity concerned.
(3) The factors referred to in subsection (2)(b) include
the following:
(a) Whether the discrimination impairs or is likely
to impair human dignity;
(b) the impact or likely impact of the discrimination
on the complainant;
(c) the position of the complainant in society and
whether he or she suffers from patterns of
disadvantage or belongs to a group that suffers
from such patterns of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
(f) whether the discrimination has a legitimate
purpose;
(g) whether and to what extent the discrimination
achieves its purpose;
(h) whether there are less restrictive and less
disadvantageous means to achieve the purpose;
(i) whether and to what extent the respondent has
taken such steps as being reasonable in the
circumstances to–
(i) address the disadvantage which arises
from or is related to one or more of the
prohibited grounds; or
(ii) accommodate diversity.
What is clear is that the PEPUDA allows a court to take into account a
wider range of factors than those set out in the Harksen case relating to
section 9(3) of the Constitution to determine whether discrimination is fair
or unfair. Some of the factors mentioned in section 14 of the PEPUDA
mirror those relied on by the Constitutional Court in section 9(3) cases.
Other factors seem to track more closely questions raised during a
section 9(2) enquiry, while yet other factors track the limitation clause
enquiry. The Constitutional Court has not provided an expansive
interpretation of this section so we must assume that its section 36 and
sections 9(2) and 9(3) analyses are all relevant when applying section 14 of
the PEPUDA.
A contextual enquiry remains at the heart of a section 14 enquiry. Such a
contextual enquiry takes account of the history of the complainants and
their position in society as well as the need for remedial measures to
address the effects of past and ongoing unfair discrimination. This is in
order to advance the value of human dignity for all. Courts have a
discretion to consider all the relevant factors listed in section 14 and then to
decide whether the discrimination is fair or unfair in the light of these
factors. All relevant factors relating to a specific case must be considered as
part of a proportionality analysis to make an overall assessment of whether
the discrimination is fair or unfair. Not all factors listed in section 14 will be
relevant in every case – it will always depend on the facts of the specific
case.
An innovation of section 14 can be found in section 14(2)(c) which
requires a court to ask ‘whether the discrimination reasonably and
justifiably differentiates between persons according to objectively
determinable criteria, intrinsic to the activity concerned’. This section
recognises that activities require individuals to possess inherent attributes or
characteristics not shared by everyone. Arguably, only a black man can play
Othello in the Shakespeare play while only a white man can play AWB
leader Eugene Terreblanche in a movie about South Africa’s transition to
democracy. Considering only members of a certain race for one of these
parts would discriminate on the basis of race, but, it could be argued, the
differentiation is based on attributes intrinsic to the playing of that part.
One aspect of the section 14 enquiry, which has elicited some discussion
by the Constitutional Court, is the requirement that a court must have regard
to ‘whether and to what extent the respondent has taken such steps as being
reasonable in the circumstances to … accommodate diversity’.138 This
factor is generally known as the requirement for reasonable
accommodation.
In MEC for Education: Kwazulu-Natal and Others v Pillay,139 the
Constitutional Court had to decide whether the failure of a school
disciplinary code to take into account the religious or cultural practices of a
Hindu learner unfairly discriminated against her. Ms Pillay wanted to wear
a nose stud to school as this formed part of her religious and cultural
beliefs, but the school’s disciplinary code prohibited this. At the heart of the
case was whether the school had reasonably accommodated the minority’s
religious and cultural practices.
The Court explained that reasonable accommodation required
institutions to ‘take positive measures and possibly incur additional
hardship or expense in order to allow all people to participate and enjoy all
their rights equally’.140 The aim is to ensure that groups are not relegated
to the margins of society because they do not or cannot conform to certain
social norms.141 At the heart of this principle is the need positively to
accommodate diversity. ‘Those steps might be as simple as granting and
regulating an exemption from a general rule or they may require that the
rules or practices be changed or even that buildings be altered or monetary
loss incurred.’ 142 The extent to which an institution or community should
reasonably accommodate the cultural and religious beliefs and practices of
others is a difficult question. However, the Constitutional Court has argued
that this must be answered with reference to the specific context. As such,
reasonable accommodation is ‘an exercise in proportionality that will
depend intimately on the facts’ of each case.143
When considering whether discrimination as defined by the PEPUDA is
reasonable or not, ‘reasonable accommodation will always be an important
factor’.144 However, it would be wrong to reduce the test for fairness to a
test for reasonable accommodation. As the Constitutional Court explained
in Pillay:
 There may be circumstances where fairness requires a
reasonable accommodation, while in other circumstances
it may require more or less, or something completely
different. It will depend on the nature of the case and the
nature of the interests involved. Two factors seem
particularly relevant. First, reasonable accommodation
is most appropriate where, as in this case, discrimination
arises from a rule or practice that is neutral on its face
and is designed to serve a valuable purpose, but which
nevertheless has a marginalising effect on certain
portions of society. Second, the principle is particularly
appropriate in specific localised contexts, such as an
individual workplace or school, where a reasonable
balance between conflicting interests may more easily be
struck. Even where fairness requires a reasonable
accommodation, the other factors listed in section 14 will
always remain relevant.145
What is clear is that when determining whether discrimination is fair or
unfair, a court has to balance the various interests and has to make a value
judgment, guided by the factors set out in section 14 of the PEPUDA. Thus,
an institution may discriminate against a group who previously benefitted
from unfair discrimination in order to address the effects of past and
ongoing unfair discrimination. In other words, the institution institutes
affirmative action measures. This may well weigh heavily in favour of
finding the discrimination to be fair unless the considerations set out by the
Constitutional Court when it applied section 9(2) mitigates against such a
finding. Similarly, where discrimination entrenches the privileges of those
who benefitted from past unfair discrimination or perpetuates the
stigmatisation and marginalisation of disfavoured groups, it would be
difficult for a court to find that the discrimination was fair. It is therefore
important when applying the section 14 criteria to have regard for the
Constitutional Court’s jurisprudence on the various subsections of section 9
of the Constitution.
PAUSE FOR REFLECTION

The principle of reasonable accommodation as it

applies in the disability field
In Pillay, Ngcobo J explained the principle of reasonable
accommodation as it applies in the disability field in the
following manner:
Disabled people are often unable to access or participate in public
or private life because the means to do so are designed for able-
bodied people. The result is that disabled people can, without any
positive action, easily be pushed to the margins of society:

Exclusion from the mainstream of society results from the

construction of a society based solely on ‘mainstream’
attributes to which disabled persons will never be able to gain
access. Whether it is the impossibility of success at a written
test for a blind person, or the need for ramp access to a library,
the discrimination does not lie in the attribution of untrue
characteristics to the disabled individual. The blind person
cannot see and the person in a wheelchair needs a ramp. Rather,
it is the failure to make reasonable accommodation, to fine-tune
society so that its structures and assumptions do not result in
the relegation and banishment of disabled persons from
participation, which results in discrimination against them.146

The notion of reasonable accommodation is therefore a

powerful tool to disturb often invisible norms which prevail
because these norms are shared by the majority or by
economically and culturally powerful groups. For example,
municipal regulations that prohibit the slaughtering of
animals in residential areas are based on the cultural
beliefs and practices of the white minority who do not
generally slaughter animals during major celebrations. The
neutral rule prohibiting the slaughtering of animals is based
on a seemingly rational assumption that it is unhygienic to
allow the slaughtering of animals in residential areas. This
rule can arguably be said to fail reasonably to
accommodate the cultural beliefs and practices of many
 black South Africans. Once this is accepted, the question is
not whether such cultural practices of the majority should
be accommodated, but rather how to accommodate such
practices while not negating the seemingly rational aims of
such regulations.

12.3 The right to human dignity

12.3.1 Introduction
As we indicated at the beginning of this chapter, dignity is one of the
founding values of the Constitution and permeates many aspects of the
Constitution.147 As we have seen, the value of dignity is used to interpret
the equality guarantees in section 9 of the Constitution. Dignity also
permeates the interpretation of other rights in the Bill of Rights, including
social and economic rights.148
However, dignity is not only one of the founding values of the
Constitution, it is also an independent, self-standing, enforceable right.
Section 10 of the Constitution states that everyone has inherent dignity and
the right to have their dignity respected and protected. The right therefore
implies an expectation to be protected from conditions or treatment which
offends the subject’s sense of his or her worth in society. In particular,
treatment which is abusive, degrading, humiliating or demeaning is a
violation of this right.149 Moreover, conduct which treats the subject as
non-human or less than human or as an object is intolerable and contrary to
section 10 of the Constitution.150
At the heart of the right to dignity is the assumption that each human
being has incalculable human worth, regardless of circumstances, and
should be treated accordingly. This idea or value is ‘at the inner heartland of
our rights culture’.151 Dignity can be viewed narrowly as a personal right
associated with a person’s identity,152 autonomy and moral agency.153
According to Sachs J, the right to dignity necessarily entails that everyone
has the same moral worth154 as dignity entails an acknowledgement of ‘the
intrinsic worth of human beings’ and the recognition that ‘human beings are
entitled to be treated as worthy of respect and concern’.155 Moreover,
human dignity demands that people be treated as unique individuals rather
than as representatives of a group.
South African courts have developed a comprehensive meaning of the
right to human dignity. In light of the fact that the Constitution permits
reference to foreign law to interpret the right in the Bill of Rights, our
courts have invoked the jurisprudence of foreign jurisdictions to clarify the
meaning of the concept of human dignity. Specifically, former Chief Justice
Chaskalson referred to the case of Law v Canada (Minister of Employment
and Immigration) 156 in his academic paper concerning the meaning of the
right to human dignity.157 In the Law v Canada case, the Canadian
Supreme Court explained human dignity as follows:
Human dignity means that an individual or group feels
self-respect and self-worth. It is concerned with physical
and psychological integrity and empowerment. Human
dignity is harmed by unfair treatment premised upon
personal traits or circumstances which do not relate to
individual needs, capacities, or merits. It is enhanced by
laws which are sensitive to the needs, capacities and
merits of different individuals, taking into account the
context of their differences. Human dignity is harmed
when individuals and groups are marginalised, ignored,
or devalued, and is enhanced when laws recognise the
full place of all individuals and groups within society.158
However, dignity can be viewed as including more than the individualised
personal well-being of the bearers of rights. Understood more broadly,
dignity aims to create the opportunity for every individual to reach his or
her full potential and to experience complete freedom. In terms of this more
encompassing view, ‘dignity, properly understood, secures the space for
self-actualisation’.159 If we view dignity as the conduit to achieve the more
expansive notion of human freedom, it addresses the entire set of factors –
including social and economic factors – that may limit an individual’s
agency. Ackermann J’s dictum in the case of Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others is telling when he
states:
Human dignity cannot be fully valued or respected
unless individuals are able to develop their humanity,
their ‘humanness’ to the full extent of its potential. Each
human being is uniquely talented. Part of the dignity of
every human being is the fact and awareness of this
uniqueness. An individual’s human dignity cannot be
fully respected or valued unless the individual is
permitted to develop his or her unique talents optimally.
Human dignity has little value without freedom; for
without freedom personal development and fulfilment
are not possible. Without freedom, human dignity is little
more than an abstraction. Freedom and dignity are
inseparably linked. To deny people their freedom is to
deny them their dignity.160
In the following sections we discuss the manner in which dignity as a value
differs from dignity as a protected right. We also explore the ways in which
the Constitutional Court has used the right to dignity as a catch-all right to
be invoked in cases where none of the other rights are applicable.

12.3.2 Human dignity as a right and as a value

It is important to distinguish between dignity as a value invoked to interpret
other rights in the Bill of Rights and dignity as a free-standing right that can
be relied on. Dawood and Another v Minister of Home Affairs and Others;
Shalabi and Another v Minister of Home Affairs and Others; Thomas and
Another v Minister of Home Affairs and Others 161 is an important case for
the purpose of illustrating the fact that dignity operates as both a right and a
value in our constitutional sphere. This case concerned the right of spouses,
dependent children and destitute, aged or infirm family members to remain
in the country pending an application for permanent residence status while
all other family members were required to leave the country.
In light of the fact that s 25(9)(b) of the Aliens Control Act 96 of 1991
stipulated that such applications had to be considered on their merits, these
provisions necessarily authorised immigration officials and the Director
General to refuse to issue or extend such temporary permits. In the event
that an application was rejected, the consequence was that a South African
married to a foreign spouse had to choose between going abroad with his or
her partner while the application was considered, or remaining in South
Africa, thereby infringing on the marital right to cohabit. This limitation on
the right to cohabit was deemed to be an infringement of the right to dignity
and accordingly, s 25(9)(b) of the Aliens Control Act was found to be
unjustifiable and invalid.
However, the Bill of Rights does not contain an explicit right to marry or
to have a person’s family life protected. For this reason, the Court relied on
the right to human dignity to invalidate the impugned legal provisions. In
the process of doing so, O’Regan J explained the importance of the value of
human dignity in the following terms:
The value of dignity in our Constitutional framework
cannot … be doubted. The Constitution asserts dignity to
contradict our past in which human dignity for black
South Africans was routinely and cruelly denied. It
asserts it too to inform the future, to invest in our
democracy respect for the intrinsic worth of all human
beings. Human dignity therefore informs constitutional
adjudication and interpretation at a range of levels. It is
a value that informs the interpretation of many, possibly
all, other rights. This Court has already acknowledged
the importance of the constitutional value of dignity in
interpreting rights such as the right to equality, the right
not to be punished in a cruel, inhuman or degrading way,
and the right to life. Human dignity is also a
constitutional value that is of central significance in the
limitations analysis.162
Human dignity as a value has therefore been invoked in many different
settings. For example, when dealing with discrimination on the basis of
sexual orientation, the Constitutional Court invoked dignity as a powerful
value underlying its analysis. In National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and Others,163 the Court held
that the common law criminalisation of sodomy was a violation of the right
not only of equality but also of dignity. The reason for this decision was that
as a result of the criminal offence, gay men were at risk of arrest,
prosecution and conviction of the offence of sodomy simply because they
sought to engage in sexual conduct which was part of their experience of
being human. The criminalisation of sodomy had the effect of degrading
and devaluing gay men which was an invasion of their dignity. More
recently, in the case of Minister of Home Affairs and Another v Fourie and
Another, the Constitutional Court declared that the denial of the right of
homosexual persons to marry ‘represented a harsh if oblique statement by
the law that same-sex couples are outsiders, and that their need for
affirmation and protection of their intimate relations as human beings is
somehow less than that of heterosexual couples’.164 The inference was that
same-sex couples were not worthy of the same rights and protection as
heterosexual couples. To remedy this indignity, the Court declared the
common law definition of marriage inconsistent with the Constitution and
invalid to the extent that it did not permit same-sex couples to enjoy the
status and benefits coupled with responsibilities it accorded to heterosexual
couples.
The value of human dignity has also been invoked in socio-economic
rights interpretation. As we shall see, when determining whether the state
has acted reasonably to give effect to various social and economic rights,
the notion of dignity is often invoked. Thus in Government of the Republic
of South Africa and Others v Grootboom and Others, the Court held that the
foundational values of the Constitution, those of human dignity, freedom
and equality, are denied to those who have no food, clothing or shelter.165
A similar move occurred in Minister of Health and Others v Treatment
Action Campaign and Others (No 2), in which the Court held with reference
to the right of access to health care that ‘[n]o one should be condemned to a
life below the basic level of dignified human existence’.166 As Liebenberg
points out, the value of dignity is here used in its expansive form, implying
that the dignity of human beings can only be safeguarded if they live in
conditions that enable them to develop their capabilities, to participate as
agents in the shaping of their society.167 As Liebenberg suggests, the
reliance on the value of dignity in social and economic rights cases affirms
that dignity ‘does not or should not confine us to individual personality
issues but can focus our gaze on material conditions of advantage and
disadvantage in society’.168
Dignity was further defined in Occupiers of 51 Olivia Road, Berea
Township and 197 Main Street Johannesburg v City of Johannesburg and
Others, concerning access to adequate shelter, where the Court held as
follows:
It is fundamental to an evaluation of the reasonableness
of State action that account be taken of the inherent
dignity of human beings. The Constitution will be worth
infinitely less than its paper if the reasonableness of State
action concerned with housing is determined without
regard to the fundamental constitutional value of human
dignity. Section 26, read in the context of the Bill of
Rights as a whole, must mean that the respondents have
a right to reasonable action by the State in all
circumstances and with particular regard to human
dignity. In short, I emphasise that human beings are
required to be treated as human beings. This is the
backdrop against which the conduct of the [State] must
be seen.169
However, the Court pointed out that section 10 of the Bill of Rights makes
it plain that dignity is not only a value fundamental to our Constitution, it is
also a justiciable and enforceable right that must be respected and
protected. Because the value of dignity informs the interpretation of many if
not all rights contained in the Bill of Rights, in most cases where the value
of human dignity is offended, ‘the primary constitutional breach occasioned
may be of a more specific right’.170 This leaves a limited but pivotal role
for the right (as opposed to the value) to human dignity. The right to dignity
will usually only be relied on where none of the other rights will
specifically protect the interest at stake.171 In Dawood, the Constitutional
Court relied on the right to dignity precisely because no other right in the
Bill of Rights explicitly guarantees the right to marry and family life for
individuals. The Court argued that because there was not a more specific
right available ‘that protects individuals who wish to enter into and sustain
permanent intimate relationships’,172 it was required to rely on section 10:
The decision to enter into a marriage relationship and to
sustain such a relationship is a matter of defining
significance for many if not most people and to prohibit
the establishment of such a relationship impairs the
ability of the individual to achieve personal fulfilment in
an aspect of life that is of central significance. In my
view, such legislation would clearly constitute an
infringement of the right to dignity. It is not only
legislation that prohibits the right to form a marriage
relationship that will constitute an infringement of the
right to dignity, but any legislation that significantly
impairs the ability of spouses to honour their obligations
to one another would also limit that right. A central
aspect of marriage is cohabitation, the right (and duty)
to live together, and legislation that significantly impairs
the ability of spouses to honour that obligation would
also constitute a limitation of the right to dignity.173
This means that the right to dignity has the potential to be used by the
courts to deal with human rights infringements not specifically addressed
by other rights explicitly included in the Bill of Rights. It may well be that
as society evolves and as we recognise new forms of indignity not captured
by the text of the Bill of Rights, the Constitutional Court may interpret the
right to human dignity to provide protection to individuals affected by these
affronts to their dignity. This turns the right to human dignity into a
potentially powerful tool to ensure that the Bill of Rights addresses
evolving human rights concerns.

PAUSE FOR REFLECTION

New forms of indignity not captured by the text

of the Bill of Rights
In Teddy Bear Clinic for Abused Children and Another v
Minister of Justice and Constitutional Development and
Another,174 the Constitutional Court also invoked the right
to human dignity to declare invalid sections 15 and 16 of
the Sexual Offences and Related Matters Amendment
Act.175 The impugned sections criminalised consensual
sexual intercourse between adolescents (between 12 and
16 years of age) as well as other forms of physical contact
between adolescents including petting, kissing and
hugging. The Act stated that in such cases both of the
adolescents involved had to be prosecuted. The Act
provided for a ‘close-in-age’ defence to an adolescent who
is charged with petting, kissing and hugging, but not to an
adolescent who is charged with sexual intercourse with
another adolescent. This means that where both the
adolescents were children ‘and the age difference between
them was not more than two years at the time of the
alleged commission of the offence’ 176 they could not be
prosecuted, but only in cases of petting, kissing and other
non-intercourse related sexual contact.
In coming to the conclusion that sections 15 and 16 of
the Act unconstitutionally infringed the right to human
dignity, the Constitutional Court stated:
It cannot be doubted that the criminalisation of consensual sexual
conduct is a form of stigmatisation which is degrading and
invasive. In the circumstances of this case, the human dignity of
the adolescents targeted by the impugned provisions is clearly
 infringed. If one’s consensual sexual choices are not respected by
society, but are criminalised, one’s innate sense of self-worth will
inevitably be diminished. Even when such criminal provisions are
rarely enforced, their symbolic impact has a severe effect on the
social lives and dignity of those targeted. It must be borne in mind
that sections 15 and 16 criminalise a wide range of consensual
sexual conduct between children: the categories of prohibited
activity are so broad that they include much of what constitutes
activity undertaken in the course of adolescents’ normal
development. There can also be no doubt that the existence of a
statutory provision that punishes forms of sexual expression that
are developmentally normal degrades and inflicts a state of
disgrace on adolescents. To my mind, therefore, the stigma
attached to adolescents by the impugned provisions is manifest.
The limitation of section 10 of the Constitution is obvious and
undeniable.177

12.4 The right to privacy

12.4.1 Introduction
One of the most notorious legislative provisions in place during the
apartheid era was section 16 of the Immorality Act.178 This section
criminalised all extramarital sexual relations between a white male and a
non-white female, or vice versa. (Interracial marriages were prohibited by
the Prohibition of Mixed Marriages Act.179) The Immorality Act
authorised police officers to invade people’s private homes in order to catch
couples in the act of breaking this law, thus infringing on their privacy. The
playwright Athol Fugard wrote a play, which opened in 1972, entitled
Statements After an Arrest Under the Immorality Act, to dramatise the
absurdity, the heartache and the pain caused by this provision. A short
summary of the play illustrates the effects of section 16:
Set in apartheid South Africa, where relationships across
the colour bar were a criminal offence, two lovers – a
black man and white woman meet secretly in the library
where the woman works to make love and share their
 hopes and fears. An observant neighbour reports them to
the police who secretly photograph them from the
informant’s backyard and eventually break in and arrest
the couple under the then inhuman and universally
pilloried Immorality Act. The play is a compelling and
deeply moving love story in which the physically and
emotionally naked lovers expose not only their bodies
but also their deepest longings for personal and
emotional freedom.180
Given this history, it is no surprise that section 14 of the Constitution
provides that ‘[e]veryone has the right to privacy’, which includes the right
not to have their person or home searched; their property searched; their
possessions seized; or the privacy of their communications infringed.
Section 14 therefore contains a general right to privacy as well as
specifically enumerated infringements of privacy.181 These enumerated
areas of protection form part of the general right to privacy.

12.4.2 Scope and content of the right to privacy

Privacy recognises that we all have a right to a sphere of private intimacy
and autonomy. By protecting this private and intimate sphere, we are
allowed ‘to establish and nurture human relationships without interference
from the outside community’.182 The scope of a person’s privacy extends
only to those aspects ‘in regard to which a legitimate expectation of privacy
can be harboured’.183 There are two distinct components to this
expectation: first, ‘a subjective expectation of privacy’ and second, an
expectation that the society has recognised as ‘objectively reasonable’.184
A person cannot have a subjective expectation of privacy in cases where he
or she has willingly consented to waive that privacy.185 The second
component does not focus on the subjective expectations of the claimant
based on his or her explicit or implicit consent to waive his or her privacy.
Rather, the second component focuses on a determination by a court on
whether the person claiming that his or her privacy was infringed could
reasonably expect his or her privacy to be protected in the particular
circumstances.
The decision whether, reasonably speaking, a person has a legitimate
expectation to privacy may depend at least partly on whether the
interference was of the ‘inner sanctum’ of personhood or not. As the
Constitutional Court pointed out in Bernstein and Others v Bester NO and
Others:
The truism that no right is to be considered absolute,
implies that from the outset of interpretation each right
is always already limited by every other right accruing to
another citizen. In the context of privacy this would
mean that it is only the inner sanctum of a person, such
as his/her family life, sexual preference and home
environment, which is shielded from erosion by
conflicting rights of the community. This implies that
community rights and the rights of fellow members place
a corresponding obligation on a citizen, thereby shaping
the abstract notion of individualism towards identifying
a concrete member of civil society. Privacy is
acknowledged in the truly personal realm, but as a
person moves into communal relations and activities
such as business and social interaction, the scope of
personal space shrinks accordingly.186
The effect of this view regarding privacy is that in the ‘inner sanctum’ of a
person’s life, in his or her ‘truly personal realm’ like his or her home or
bedroom, there would be a far greater likelihood that a person’s expectation
of having his or her privacy respected is reasonable. Privacy is therefore
viewed as a continuum with more intense protection at its core and less
intense protection on the periphery. Privacy becomes more intense the
closer it moves to the intimate personal sphere of life of human beings and
less intense as it moves away from that core.187 Privacy and dignity are
therefore closely related.188 This is so because where a person’s privacy is
breached, that person will often not be treated with concern and respect.
 There is a range of factors relevant to distinguishing the core of privacy
from its penumbra. One of the considerations is the nature of the
relationship concerned. For example, in Jordan, the minority judgment of
the Constitutional Court found with regard to the regulation of sex work
that:
One of the considerations is the nature of the
relationship concerned: an invasion of the relationship
between partners, or parent and child, or other intimate,
meaningful and intensely personal relationships will be a
strong indication of a violation close to the core of
privacy.189
Following this reasoning, the minority in the Jordan case concluded that the
commercial nature of the conduct under consideration removed it from the
inner sanctum of privacy. The majority in this case, controversially, came to
the same conclusion, holding that if the right to privacy is implicated at all
in a case where sex work is regulated, ‘it lies at the periphery and not at its
inner core’.190
For the same reason the Constitutional Court found in Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty)
Ltd and Others v Smit NO and Others 191 that the privacy rights of a
juristic person would be less intense than those of a human being. Although
juristic persons like big companies also enjoy the protection of the privacy
right, this protection would be weaker than for an ordinary human being:
As we have seen, privacy is a right which becomes more
intense the closer it moves to the intimate personal
sphere of the life of human beings, and less intense as it
moves away from that core. This understanding of the
right flows, as was said in Bernstein, from the value
placed on human dignity by the Constitution. Juristic
persons are not the bearers of human dignity. Their
privacy rights, therefore, can never be as intense as those
of human beings. However, this does not mean that
 juristic persons are not protected by the right to privacy.
Exclusion of juristic persons would lead to the possibility
of grave violations of privacy in our society, with serious
implications for the conduct of affairs. The state might,
for instance, have free licence to search and seize
material from any non-profit organisation or corporate
entity at will. This would obviously lead to grave
disruptions and would undermine the very fabric of our
democratic state. Juristic persons therefore do enjoy the
right to privacy, although not to the same extent as
natural persons. The level of justification for any
particular limitation of the right will have to be judged
in the light of the circumstances of each case. Relevant
circumstances would include whether the subject of the
limitation is a natural person or a juristic person as well
as the nature and effect of the invasion of privacy.192

12.4.3 Privacy regarding sexual intimacy

Few aspects of a person’s life can be said to be more intimate and private
than his or her consensual sexual conduct conducted in private. The way in
which we give expression to our sexuality is therefore at the core of the
protection afforded by the right to private intimacy.193 Whenever a person
expresses his or her sexuality consensually and without harming another,
invasion of that precinct will be a breach of that person’s privacy.194
Where legislation aims to regulate consensual adult sexual intimacy it will
therefore strike at the heart of the right to privacy. However, it has been
argued that where such regulation discriminates against a targeted group –
like gay men, lesbians and transgendered individuals – it would be
inappropriate to invoke the right to privacy, instead of the right against non-
discrimination, as this would not capture the true obnoxious nature of the
discrimination. As Cameron had previously argued in the context of the
regulation of same-sex sexual desire:
 [T]he privacy argument has detrimental effects on the
search for a society which is truly non-stigmatizing as far
as sexual orientation is concerned. On the one hand, the
privacy argument suggests that discrimination against
gays and lesbians is confined to prohibiting conduct
between adults in the privacy of the bedroom. This is
manifestly not so. On the other hand, the privacy
argument may subtly reinforce the idea that homosexual
intimacy is shameful or improper: that it is tolerable so
long as it is confined to the bedroom — but that its
implications cannot be countenanced outside. Privacy as
a rationale for constitutional protection therefore goes
insufficiently far, and has appreciable drawbacks even
on its own terms.195
However, in National Coalition for Gay and Lesbian Equality v Minister of
Justice, the Constitutional Court rejected this argument. The Court pointed
out that rights should not be construed absolutely or individualistically in
ways which denied that all individuals are members of a broader
community and are defined in significant ways by that membership.196 The
regulation of sexual conduct can infringe both the right to equality and the
right to privacy. Emphasising the breach of both these rights could highlight
‘just how egregious the invasion of the constitutional rights’ are. When
recognising the breach of privacy in such a setting, it can strengthen the
conclusion that the discrimination inherent in the breach of privacy also
constitutes unfair discrimination.197
In Teddy Bear Clinic, the Constitutional Court affirmed that the right to
privacy in sexual matters is not only enjoyed by adults but also by
adolescents. Where legislation criminalises the consensual sexual conduct
of adolescents, it applies to the most ‘intimate sphere of personal
relationships and therefore inevitably implicate[s] the constitutional right to
privacy’.198 ‘The offences allow police officers, prosecutors and judicial
officers to scrutinise and assume control of the intimate relationships of
adolescents, thereby intruding into a deeply personal realm of their lives.’
199

SUMMARY

This chapter deals with the right to equality and the right to dignity.
Section 9 of the Constitution guarantees the right to equality. A litigant
invokes section 9 in cases where he or she wishes to attack the
constitutionality of a legislative provision because the litigant believes that
the provision impermissibly differentiates between people or groups of
people. The courts rely on section 9(1), section 9(2) or section 9(3),
depending on the nature of the differentiation complained of, to decide the
case.
The courts rely on section 9(1) where a legislative provision
differentiates between groups of people on grounds other than those listed
in section 9(3) or analogous to those listed in section 9(3). This so-called
mere differentiation includes the many distinctions made in legislation that
are not related to the personal attributes and characteristics of groups of
people. A section 9(1) challenge has to be based on the question of whether
the differentiation (mere differentiation) was rational or arbitrary.
The courts rely on section 9(2) where the legislative provision being
challenged differentiates between groups of people on one of the grounds
listed in section 9(3) or on grounds analogous to those listed in this section,
for example race, sex or sexual orientation. However, in this case, the
legislation differentiates between groups of people with the aim of
correcting the effects of past unfair discrimination (affirmative action).
When testing an affirmative action provision against section 9(2), the court
asks:
• whether the affirmative action scheme devised by the legislature targets a
group who was unfairly discriminated against in the past
• whether the scheme is designed to achieve its redress goal, in other
words, whether it is reasonably capable of doing so
• whether the scheme will achieve the long-term goal of equality, which
would not be the case if the scheme gratuitously and flagrantly imposes
disproportionate burdens on the excluded group.
Section 9(3) deals with unfair discrimination. This is discrimination on one
or more of the grounds listed in that section or analogous to those grounds,
but only when the differentiation was not done with the aim of
implementing an affirmative action policy. When deciding whether
discrimination is fair or unfair for purposes of section 9(3), the court
follows a contextual approach. This means that the court considers:
• whether the complainant belongs to a group previously discriminated
against
• whether the discrimination pursues an important purpose
• how severe the impact of the discrimination is on the group.
The courts must deal with allegations of discrimination by private
individuals, public officials or institutions, in other words, allegations of
non-statutory forms of discrimination, in terms of the Promotion of Equality
and Prevention of Unfair Discrimination Act (PEPUDA). The PEPUDA
was passed in accordance with section 9(4) of the Constitution to ensure the
horizontal application of the prohibition on discrimination. When applying
the provisions of the PEPUDA, the concept of reasonable accommodation
is important but not always decisive. The PEPUDA requires a court to
consider many of the same considerations relevant to a section 9(2) or a
section 9(3) enquiry, as well as considerations relevant to a limitations
clause enquiry in terms of section 36, when it decides whether the
discrimination is fair or unfair.
Section 10 of the Constitution protects the right to dignity. The right to
dignity must be distinguished from the value of dignity that permeates the
Constitution and underlies the interpretation of many, if not all, the other
rights in the Bill of Rights. The courts usually rely on the right to dignity if
the dignity interest is not adequately protected by any of the other rights in
the Bill of Rights.
Section 14 of the Constitution protects the right to privacy. This right is
viewed as having a core which is more rigorously protected than its
penumbra. While both individuals and juristic persons can rely on this right,
the level of protection will differ depending on the nature of the situation.
Courts ask whether privacy protection could reasonably be expected, given
the nature of the relationship that is being protected. In this schema, it goes
without saying that consensual intimate sexual relationships go to the heart
of the right to privacy.

1 See S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;
[1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 329; Teddy Bear Clinic for Abused
Children and Another v Minister of Justice and Constitutional Development and Another (CCT
12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC) (3 October 2013) para 52.
2 See Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 250.
3 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others
(CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 35.
4 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others
(CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (CC) (9 October 1998)
para 120.
5 Dawood para 35.
6 Dawood para 35.
7 For an admirable book-length attempt to do so, see Ackermann, L (2012) Human Dignity:
Lodestar for Equality in South Africa.
8 Teddy Bear Clinic para 52. See also Khumalo and Others v Holomisa (CCT53/01) [2002]
ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 27. See also Cameron, E
(2012) Dignity and disgrace: Moral citizenship and constitutional protection, lecture delivered
at the University of Oxford’s Understanding Human Dignity Conference (26–29 June 2012) (as
yet unpublished) at 10.
9 See Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1997 (12)
BCLR 1675; 1998 (2) SA 38 (2 December 1997) para 23.
10 Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752
(15 May 1996) para 40.
11 Langa, P (2006) Transformative constitutionalism Stellenbosch Law Review 17(3):351–60 at
352–3. See also Albertyn, C and Goldblatt, B ‘Equality’ in Woolman, S and Bishop, M (eds)
(2013) Constitutional Law of South Africa 2nd ed rev service 5 35.5.
12 Currie and De Waal (2013) 213.
13 See De Vos, P (2000) Equality for all? A critical analysis of the equality jurisprudence of the
Constitutional Court Tydskrif vir Hedendaagse Romeins-Hollandse Reg 63(1):62–75 at 65;
Albertyn and Goldblatt (2013) 35.6.
14 De Vos (2000) 65.
15 Albertyn and Goldblatt (2013) 35.6. See also Albertyn, C and Goldblatt, B (1998) Facing the
challenge of transformation: Difficulties in the development of an indigenous jurisprudence of
equality South African Journal on Human Rights 14(2):248–76 at 152–3.
16 National Coalition for Gay and Lesbian Equality v Minister of Justice para 60.
17 (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC); [2004] 12
BLLR 1181 (CC) (29 July 2004) para 27. See also Brink para 40; President of the Republic of
South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4)
SA 1 (18 April 1997) para 41; Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC
5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997) para 31; City Council of Pretoria v
Walker (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998)
 para 46; Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1;
2000 (11) BCLR 1235; [2000] 12 BLLR 1365 (CC) (28 September 2000).
18 Brink para 40. See also Walker para 26 where Langa DP stated that the assessment of
discrimination cannot be undertaken in a vacuum, ‘but should be based both on the wording of
the section and in the constitutional and historical context of the developments in South
Africa’.
19 Brink para 41.
20 Brink para 41.
21 See, for example, Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1997 (11)
BCLR 1489; 1998 (1) SA 300 (7 October 1997) para 51(b).
22 See De Vos (2000) 66.
23 Botha, H (2009) Equality, plurality and structural power South African Journal on Human
Rights 25(1):1–37 at 7.
24 For a real-life example, see Kassiem, A (2006, 26 June) Guest houses can be for gay men only
available at http://www.iol.co.za/news/south-africa/guest-houses-can-be-for-gay-men-only-
1.283071.
25 Act 4 of 2000.
26 Prinsloo para 23.
27 Prinsloo para 24.
28 Brink; Prinsloo; Hugo; Harksen; Larbi-Odam and Others v Member of the Eexecutive Council
for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12)
BCLR 1655; 1998 (1) SA 745 (26 November 1997); Walker; National Coalition for Gay and
Lesbian Equality v Minister of Justice; Hoffmann; Moseneke and Others v Master of the High
Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000);
Satchwell v President of Republic of South Africa and Another (CCT45/01) [2002] ZACC 18;
2002 (6) SA 1; 2002 (9) BCLR 986 (25 July 2002); J and Another v Director General,
Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463;
2003 (5) SA 621 (CC) (28 March 2003); Du Toit and Another v Minister of Welfare and
Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006;
2003 (2) SA 198 (CC) (10 September 2002); Bhe and Others v Khayelitsha Magistrate and
Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC)
(15 October 2004); Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5)
BCLR 446 (CC) (21 February 2005); Minister of Home Affairs and Another v Fourie and
Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC)
(1 December 2005); Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA
97 (CC); 2007 (3) BCLR 249 (CC) (23 November 2006). See also Pretorius, JL (2010)
Fairness in transformation: A critique of the Constitutional Court’s affirmative action
jurisprudence South African Journal on Human Rights 26(3):536–70.
29 See generally Fagan, A (1998) Dignity and unfair discrimination: A value misplaced and a
right misunderstood South African Journal on Human Rights 14(2):220–47 at 220; and Westen,
P (1982) The empty idea of equality Harvard Law Review 95(3):537–96 at 537.
30 National Coalition for Gay and Lesbian Equality v Minister of Justice para 122.
31 De Vos (2000) 64.
32 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997).
33 Hugo para 41.
34 Hugo para 41. See also Albertyn and Goldblatt (1998) 257.
35 See Woolman, S ‘Dignity’ in Woolman and Bishop (2013) 36.3.
36 Hugo para 41; Prinsloo paras 31–3; Harksen para 50.
37 (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997).
38 Prinsloo para 33. See also Harksen para 50: ‘Whether or not there is discrimination will
depend upon whether, objectively, the ground is based on attributes and characteristics which
have the potential to impair the fundamental human dignity of persons as human beings or to
affect them adversely in a comparably serious manner.’
39 Malherbe, R (2007) Some thoughts on unity, diversity and human dignity in the new South
Africa Tydskrif vir die Suid Afrikaanse Reg/Journal of South African Law 70(1):127–33 at 132.
40 Albertyn and Goldblatt (1998) 256–60.
41 Botha (2009) 8.
42 Botha (2009) 9.
43 Albertyn and Goldblatt (2013) 35.10. See, for example, Government of the Republic of South
Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46;
2000 (11) BCLR 1169 (4 October 2000) para 23.
44 (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC)
(4 March 2004).
45 Khosa para 74.
46 Van Heerden para 25.
47 Van Heerden para 31.
48 South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007]
ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC); (2007) 28
ILJ 1909 (CC) (30 May 2007) paras 51–2; MEC for Education: Kwazulu-Natal and Others v
Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC)
(5 October 2007) paras 39–40; Walele v City of Cape Town and Others (CCT 64/07) [2008]
ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June 2008) paras 29–30;
Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09)
[2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009) paras 47–9. See also Van der
Walt, AJ (2008) Normative pluralism and anarchy: Reflections on the 2007 term Constitutional
Court Review 1:77–128 at 100–03.
49 Prinsloo para 25.
50 Prinsloo paras 23–4.
51 Van Heerden para 33.
52 National Coalition for Gay and Lesbian Equality v Minister of Justice para 18.
53 Prinsloo para 22.
54 Act 55 of 1998.
55 Prinsloo para 22, quoting, in part, Didcott in S v Ntuli (CCT17/95) [1995] ZACC 14; 1996 (1)
BCLR 141; 1996 (1) SA 1207 (8 December 1995) para 18. See also Walker para 27.
56 Prinsloo para 25 and Walker para 27.
57 Prinsloo para 25.
58 Prinsloo para 25.
59 See Mendes, E ‘The crucible of the Charter’ in Beaudoin, GA and Mendes, E (eds) (1996) The
Canadian Charter of Rights and Freedoms 3.20; Tribe, LH (1988) American Constitutional
Law 2nd ed 1442–3.
60 Prinsloo para 35.
61 Harksen para 43.
62 Prinsloo paras 24–6.
63 Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA
230 (CC); 2006 (6) BCLR 682 (CC) (30 March 2006) para 33. See also Jooste v Score
 Supermarket Trading (Pty) Ltd (Minister of Labour intervening) (CCT15/98) [1998] ZACC 18;
1999 (2) SA 1; 1999 (2) BCLR 139 (27 November 1998).
64 In Jooste para 16 the Constitutional Court explained this as follows:
It is clear that the only purpose of rationality review is an inquiry into whether the
differentiation is arbitrary or irrational, or manifests naked preference and it is
irrelevant to this inquiry whether the scheme chosen by the legislature could be
improved in one respect or another. Whether an employee ought to have retained
the common law right to claim damages, either over and above or as an alternative
to the advantages conferred by the Compensation Act, represents a highly
debatable, controversial and complex matter of policy. It involves a policy choice
which the legislature and not a court must make. The contention represents an
invitation to this Court to make a policy choice under the guise of rationality
review; an invitation which is firmly declined.
65 (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR 421 (CC) (7 March 2013).
66 Act 44 of 1958.
67 Ngewu para 17.
68 Brink para 42. See generally Walker.
69 Van Heerden para 27.
70 Van Heerden para 25.
71 See the debate on the nature of these measures in Currie and De Waal (2013) 241–2; Gutto, S
(2001) Equality and Non-Discrimination in South Africa: The Political Economy of Law and
Law Making 204–5. See also Du Plessis, L and Corder, H (1994) Understanding South Africa’s
Transitional Bill of Rights 144–5; Pretorius, JL (2001) Constitutional standards for affirmative
action in South Africa: A comparative overview Heidelberg Journal of International Law
61(8):403–57 at 403; Van Reenen, TP (1997) Equality, discrimination and affirmative action:
An analysis of section 9 of the Constitution of the Republic of South Africa SA
Publiekreg/Public Law 12(1):151–65 at 151; Dupper, O (2004) In defence of affirmative action
South African Law Journal 121(1):187–215; Dupper, O, MacEwan, M and Louw, A (2006)
Employment equity in the tertiary sector in the Western Cape International Journal of
Discrimination and the Law 8(3):191–212; De Vos, P (2012) The past is unpredictable: Race,
redress and remembrance in the South African Constitution South African Law Journal
129(1):73–103.
72 Van Heerden para 73.
73 Van Heerden para 75.
74 Van Heerden para 24.
75 Van Heerden para 31.
76 Van Heerden para 33.
77 Van Heerden paras 34–5.
78 Fargher, M (2013, 5 October) White-washed equality Politicsweb available at
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?
oid=412294&sn=Detail&pid=71616.
79 Van Heerden para 39.
80 Van Heerden para 40.
81 Albertyn and Goldblatt (2013) 35.35.
82 Van Heerden para 87.
83 Van Heerden para 155.
84 De Vos (2012) 77–8.
85 Van Heerden para 41.
86 Van Heerden para 41. See also Prinsloo paras 24–6 and 36; Jooste para 16.
87 Van Heerden para 43.
88 Van Heerden para 41.
89 Van Heerden para 152.
90 Van Heerden para 44.
91 This view is bolstered by the concurrent decisions of Sachs J in the Van Heerden judgment
(para 146), in which he emphasises the substantive nature of equality and affirms that s 9(2)
must be applied within this framework.
92 De Vos (2012) 93–4.
93 Pretorius (2010) 564.
94 Pretorius (2010) 562.
95 Pretorius (2010) 562–3.
96 In National Coalition for Gay and Lesbian Equality v Minister of Justice para 18, the Court
stressed that the two enquiries need not follow one from the other. The rational connection
enquiry would be clearly unnecessary in a case in which a court holds that the discrimination is
unfair and unjustifiable.
97 (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997)
para 44.
98 Harksen para 44. This distinction and the concomitant two-stage analysis were not employed
in the cases preceding Harksen. In Prinsloo, for example, the Court combined the two stages
or, at least, did not identify the two stages (paras 30–1). See Currie and De Waal (2013) 223.
99 Prinsloo para 29.
100 Harksen para 46.
101 Harksen para 50(b).
102 See Albertyn and Goldblatt (2013) 35.43.
103 Harksen para 47.
104 Walker para 43.
105 Walker para 43. Albertyn and Goldblatt (1998) 268 criticise this view and argue that it
‘denudes discrimination of its prejudicial connotations by not requiring that such prejudice be
demonstrated’. They find support for this view from the dissenting opinion of Sachs J in
Walker paras 105–6 who argued that there can only be a finding of discrimination (the first
stage of the analysis) if the claimant can prove that he or she had been prejudiced – that there
had been ‘actual negative impact’ associated with a specified ground – by the differentiation
which was based on one of the specified grounds. He concludes:
The core of my argument at this stage is that the complainant has not made out a
case of having suffered prima facie discrimination at all. In order to invoke the
presumption of unfairness contained in s 8(4) [now s 9(5)] some element of actual or
potential prejudice must be immanent in the differentiation, otherwise there is no
“discrimination” to be evaluated, and the need to establish fairness or unfairness
has no subject matter.
This view was, however, explicitly rejected in the same case by the majority judgment of Langa DP
as contrary to the previous equality decisions of the Court (para 33).
106 Harksen para 46.
107 Harksen para 46.
108 Harksen para 47.
109 (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1235; [2000] 12 BLLR 1365
(CC) (28 September 2000).
110 Hoffmann para 28.
111 Larbi-Odam para 19.
112 Williams, RB (2012, 18 August) Wired for success Psychology Today available at
http://www.psychologytoday.com/blog/wired-success/201208/im-successful-because-im-
beautiful-how-we-discriminate-in-favor-attractive.
113 DiSalvo, D (2013, 17 July) Study: Unattractive people are targets for cruelty at work Forbes
available at http://www.forbes.com/sites/daviddisalvo/2013/07/17/study-unattractive-people-
are-targets-for-cruelty-at-work/.
114 See Fourie.
115 (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998).
116 Walker para 31.
117 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
118 Jordan para 10.
119 Jordan para 60.
120 See Kassiem, A (2004, 11 February) Gay nightclub admits to discrimination Independent
Online available at http://www.iol.co.za/news/south-africa/gay-nightclub-admits-to-racial-
discrimination-1.122764.
121 Harksen para 44.
122 Harksen para 49.
123 Such an interpretation would mean that human dignity is employed by the court in both step 1
and step 2 in cases where the differentiation is based on one of the unspecified grounds. This
would make the process somewhat strange and at least one of the two steps completely
superfluous.
124 Harksen para 49: ‘In the final analysis it is the impact of the discrimination on the complainant
that is the determining factor regarding the unfairness of the discrimination.’
125 Harksen para 50.
126 Brink para 27. See also Albertyn and Goldblatt (2013) 35.76.
127 Khosa para 76.
128 See Hoffmann.
129 Khosa para 71.
130 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) para 54.
131 See National Coalition for Gay and Lesbian Equality v Minister of Justice para 22 where
Ackermann J further stressed that the harm of discrimination is structural in nature.
132 Act 68 of 1995.
133 Act 4 of 2000.
134 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT
59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC) (30 September
2005) paras 96 (Chaskalson CJ) and 434–7 (Ngcobo J).
135 Pillay para 40.
136 Pillay para 70.
137 S 13 of the PEPUDA.
138 Pillay para 69.
139 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October
2007).
140 Pillay para 73.
141 Pillay para 73.
142 Pillay para 75.
143 Pillay para 76.
144 Pillay para 77.
145 Pillay para 78.
146 Pillay para 74, quoting from Canadian Supreme Court judgment Eaton v Brant County Board
of Education [1997] 1 SCR 241 para 67.
147 S 1(a). See also s 36. See also Teddy Bear Clinic para 52.
148 Grootboom para 23.
149 In the case of S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7)
BCLR 861 (CC) (9 June 1995), which concerned corporal punishment, the Court held at
para 45 that ‘the fact that the adult is stripped naked [for purposes of the whipping] merely
accentuates the degradation and humiliation. The whipping of both is, in itself, a severe affront
to the dignity as a human being’.
150 Haysom, N ‘Dignity’ in Cheadle, H, Davis, D and Haysom, N (eds) (2002) South African
Constitutional Law: The Bill of Rights 131. For further reading on dignity generally, see Davis,
DM (1999) Equality: The majesty of legoland jurisprudence South African Law Journal
116:398–414 at 414; Cowen, S (2001) Can dignity guide South Africa’s equality
jurisprudence? South African Journal on Human Rights 17(1):34–58 at 34; Fagan (1998) 220.
151 Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC
20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007) para 98.
152 See generally the case of Pillay.
153 Woolman, S ‘The widening gyre of dignity’ in Woolman, S and Bishop M (eds) (2008)
Constitutional Conversations 197.
154 Walker para 113.
155 Makwanyane para 28 as per O’Regan J.
156 1 SCR 497 (1999).
157 See Chaskalson, A (2000) The Third Bram Fischer Lecture: Human dignity as a foundational
value of our Constitutional order South African Journal on Human Rights 16(2):193–205.
158 Law v Canada (Minister of Employment and Immigration) 1 SCR 497 (1999) para 53.
159 Woolman (2008) 202.
160 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)
para 49.
161 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000).
162 Dawood para 35.
163 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998).
164 (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December
2005) para 71.
165 (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000)
para 34.
166 (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) para 28.
167 Liebenberg, S (2005) The value of human dignity in interpreting socio-economic rights South
African Journal on Human Rights 21(1):1–31.
168 Liebenberg (2005) 5.
169 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008)
para 10.
170 Dawood para 35.
171 Dawood para 35.
172 Dawood para 36.
173 Dawood para 37.
174 (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC) (3 October 2013).
175 Act 32 of 2007.
176 S 56(2)(b) of the Sexual Offences and Related Matters Amendment Act.
177 Teddy Bear Clinic para 55.
178 Act 23 of 1957, later renamed the Sexual Offences Act.
179 Act 55 of 1949.
180 See http://www.capetownmagazine.com/events/statements-after-an-arrest-under-the-
immorality-act/11_37_54253.
181 Currie and De Waal (2013) 294.
182 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
183 Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR
449; 1996 (2) SA 751 (27 March 1996) para 75.
184 Bernstein para 75.
185 This is why participants in a reality television show such as Big Brother – in which contestants
are filmed 24 hours a day in a secluded house – would not be able to claim that their right to
privacy had been infringed.
186 (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 67.
187 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545
(CC) (25 August 2000) para 18.
188 Currie and De Waal (2013) 30.
189 Jordan para 80.
190 Jordan para 29.
191 (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000).
192 Hyundai Motor Distributors para 18.
193 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
194 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
195 Cameron, E (1993) Sexual orientation and the Constitution: A test case for human rights South
African Journal on Human Rights 110(3):450–72 at 464.
196 National Coalition for Gay and Lesbian Equality v Minister of Justice para 30.
197 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
198 Teddy Bear Clinic para 60.
199 Teddy Bear Clinic para 60.
Diversity rights

13.1 Introduction
13.2 Freedom of association
13.2.1 Introduction
13.2.2 The scope and content of the right to freedom of
association: general principles
13.2.3 Societal interests overriding association rights
13.2.3.1 Equality
13.2.3.2 Democracy
13.2.4 Balancing rights
13.3 Freedom of religion, belief and opinion
13.3.1 Introduction
13.3.2 The scope and content of section 15(1) of the
Constitution
13.3.3 The reasonable accommodation of religious beliefs and
practices
13.3.4 The right not to believe in any God
13.3.5 Conducting religious observances at state institutions:
section 15(2) of the Constitution
13.3.6 Legislation recognising religious and traditional
marriages: section 15(3)(a)(i) of the Constitution
13.4 The rights of cultural and religious communities
 13.4.1 The individual nature of these rights and how other
rights both qualify and enhance them
13.4.2 The international protection of cultural liberties
13.4.3 An analysis of the scope and content of sections 30 and
31 of the Constitution
13.5 Language rights
13.5.1 Introduction
13.5.2 The right not to be unfairly discriminated against on the
basis of language
13.5.3 The right to receive education in the official language
of choice
13.5.4 Languages: section 6 of the Constitution
13.5.5 The Pan South African Language Board
Summary

13.1 Introduction
South Africa is a heterogeneous society in which individuals with diverse
religious affiliations, cultural beliefs and practices, and languages must
coexist. Given the heterogeneous nature of South Africa, it is important for
the law to respect and protect the beliefs, practices and languages of the
diverse groups that make up South Africa’s population. This is because in a
society in which diversity is not respected or protected, the law will
normally reflect the beliefs, practices and languages of the majority or of
the culturally or economically dominant group, and will marginalise the
beliefs, practices and languages of discrete groups. When the beliefs,
practices and languages of discrete groups are marginalised, this not only
diminishes the constitutional goal of establishing a diverse society, but may
also cause harm to members of a marginalised group. This is especially so
in those cases where the group in question is economically or politically
vulnerable.
This state of affairs could arise, for example, where the law recognises
and endorses the views of some sections of society (inspired by their
particular religious beliefs) that homosexuality is wrong and that gay men
and lesbians do not deserve to be treated with equal concern and respect.
This would be extremely harmful to gay men and lesbians who would be
marginalised and discriminated against and who may even face threats to
their physical well-being. Similarly, if the law recognises and endorses the
views of some sections of society that certain cultural practices, such as
male circumcision, were harmful to all boys, the concomitant ban on male
circumcision would limit the rights of those sections of society whose
cultural beliefs demand that all young men should undergo circumcision.
Again, if the law endorses the view that English should be the only medium
of communication in South Africa, this would marginalise many South
Africans whose mother tongue is not English.
While it is important to respect the beliefs, practices and languages of
diverse groups, it is also important to recognise that there is an inevitable
tension between doing so and preventing those beliefs, practices and
languages from marginalising, excluding and oppressing other people in
society. This is so because some individual beliefs, practices and languages
are potentially harmful to other people. Also, they can exclude other people
from certain benefits or from access to physical spaces or certain
opportunities. To protect individuals from such exclusion, the Constitution
must balance the interests of people who hold or practise certain beliefs or
who wish to associate with members of the group they feel closest to with
the interests of others in society. Other people may be excluded by those
beliefs and practices and may, consequently, be harmed by those beliefs and
practices because they are denied opportunities or benefits. This requires
limiting the associational rights of diverse cultural, religious and other
groups in specific situations.
Striking the correct balance is not always easy. Sometimes the interests
of some groups have to yield to the interests of other groups. It is
impossible for the law to accommodate all the diverse beliefs, practices and
attitudes of all people living in South Africa in an absolute manner while
also protecting individuals against discrimination, marginalisation and
exclusion.
In this chapter we discuss some of the rights where the problem of
accommodating diversity arises most acutely. These rights include the right
to freedom of association, freedom of religion, the rights of cultural and
religious communities, and language rights. It is impossible to do so
without keeping in mind the scope and content of the right to equality,
human dignity and privacy discussed in chapter 12 of this book. This is
because the cultural and religious beliefs and practices of some groups are
often in direct conflict with the demands not to discriminate unfairly against
others and to respect the human dignity of all. Although we discuss the
scope and content of the various rights in detail, we do so against the
background of the broader question regarding the manner in which the law
can respect and protect cultural and religious diversity without negating the
rights of other groups who do not share the same beliefs and who do not
engage in the same practices.

13.2 Freedom of association

13.2.1 Introduction
Section 18 of the Constitution provides that ‘[e]veryone has the right to
freedom of association’. Freedom of association is often said to be a
foundational right for any flourishing democracy. A right to associate freely
with others ‘makes participatory politics meaningful and genuinely
representative politics possible’.1 This right also allows individuals to make
choices about how they want to arrange their lives and about their identities
as people in relationships with others in a given society, thus advancing
respect for and protecting diversity.2 The right to freedom of association
guarantees a degree of autonomy that allows individuals to make both
overtly political and more intimate choices about who to associate with.
These are choices that may affect their lives and their identities by giving
them expression in community with others.
At the heart of the right to freedom of association lies the recognition of
the communal nature of people 3 and the need for people to exercise some
of their rights as individuals ‘in association with others of like
disposition’.4 It is based on an understanding that people live in
communities with others. Also, people develop their full potential only by
relating to other people either individually or collectively. In addition,
people can often only engage in meaningful political action in association
with others. In other words, the right to freedom of association ‘protects the
rights of collective self-determination’.5 In MEC for Education: Kwazulu-
Natal and Others v Pillay, the Constitutional Court linked this notion with
the concept of ubuntu, stating:
The notion that ‘we are not islands unto ourselves’ is
central to the understanding of the individual in African
thought. It is often expressed in the phrase umuntu
ngumuntu ngabantu which emphasises ‘communality and
the inter-dependence of the members of a community’
and that every individual is an extension of others.
According to Gyekye, ‘an individual human person
cannot develop and achieve the fullness of his/her
potential without the concrete act of relating to other
individual persons’. This thinking emphasises the
importance of community to individual identity and
hence to human dignity. Dignity and identity are
inseparably linked as one’s sense of self-worth is defined
by one’s identity. Cultural identity is one of the most
important parts of a person’s identity precisely because
it flows from belonging to a community and not from
personal choice or achievement. And belonging involves
more than simple association; it includes participation
and expression of the community’s practices and
traditions.6
Associational rights are often instrumental in nature as they enable the
individuals who form the associations to protect better and to assert more
robustly other constitutional rights.7 No wonder, then, that De Toqueville is
quoted as saying that ‘no legislator can attack [the right to freedom of
association] without impairing the very foundations of society’.8 What De
Toqueville suggests is that the right to freedom of association supports and
underpins many other important rights. These include the right to make
political choices, the right to form a political party, the right to participate in
the activities of that party by recruiting, organising and campaigning on its
behalf, and the right to campaign for a political party or cause. These rights
are described as political rights in the Constitution and are the very essence
of a vibrant constitutional democracy.
Even though the right to freedom of association has a communal aspect,
it is important to note that it is primarily a right that belongs to the
individual rather than the association that has been established to give better
effect to the protection of the rights of the individual.9 In other words,
associational rights do not protect groups as groups: these rights remain
individual rights that protect the right of individuals to associate or not to
associate with others or groups of others. As Summers points out:
Although commonly asserted by the organisation,
freedom of association is not simply a collective right
vested in the organisation for its benefit. Freedom of
Association is an individual right vested in the individual
to enable him [sic] to enlarge his [sic] personal freedom.
Its function is not merely to grant power to groups, but
to enrich the individual’s participation in the democratic
process by his [sic] acting through those groups.10
The Constitutional Court affirmed this point in Pillay where O’Regan J
stated that associative rights such as the right to belong to cultural, religious
and linguistic communities are exercised by the individual person.11 They
are not rights that attach to the group. This does not mean that the right is
not related to the need for individuals to belong to organised or informal
organisations or groupings. To advance their political, social, cultural,
religious, recreational, charitable, educational and other interests or
objectives, individuals band together in organisations. This is because
individual interests are often better served if they are advanced by
associations of like-minded persons. However, it is not the right of the
organisation that is protected. Nor is the right of the group who belongs to
the organisation protected. Rather, the right of the individual to belong to
that organisation is protected. This is so because the right recognises the
autonomy of the individual to advance his or her interests in concert with
others in this manner.
As suggested above, the right to freedom of association is closely related
to and sometimes overlaps with other rights such as the right to human
dignity and the right to privacy.12 In the previous chapter we noted that the
Constitutional Court has recognised that the right to human dignity contains
an associational element at least as far as intimate relationships, such as
marriage, are concerned. Thus, in Dawood and Another v Minister of Home
Affairs and Others; Shalabi and Another v Minister of Home Affairs and
Others; Thomas and Another v Minister of Home Affairs and Others, the
Constitutional Court held that a ‘decision to enter into a marriage
relationship and to sustain such a relationship is a matter of defining
significance for many if not most people’ and to limit this right would
clearly constitute an infringement of the right to dignity.13
However, because of problems related to the accommodation of diversity
raised in the introduction to this chapter, it must be noted that difficult
questions arise about the scope and content of the right to freedom of
association. This is because the need to respect this right sometimes clashes
directly with the need to respect other important rights such as the right to
human dignity, the right not to be unfairly discriminated against and the
right to freedom of movement. Associational rights can be used to exclude
and marginalise others. Many seemingly private institutions or bodies are
powerful because they provide access to goods, services, benefits and
opportunities. Their actions can therefore have a detrimental effect on the
well-being of those individuals whom they exclude, marginalise or
discriminate against.
The more powerful the body is and the more serious the potential
harmful effect of that body’s actions on others is, the less likely it is that the
members of that body will be allowed to exercise their right to freedom of
association in an untrammelled manner. This is because seemingly private
bodies created to ensure that individuals can exercise their right of
association in conjunction with others of like mind may well exclude and
marginalise certain people. The actions of these bodies may send a signal
that the people whom they exclude or marginalise are less worthy of
constitutional concern and respect. Their actions can also deny certain
individuals access to benefits and opportunities in a manner that is
discriminatory.
The problem is particularly acute where so-called private bodies provide
a service to the public. The owner of a holiday resort catering for white
Afrikaans, Christian holiday makers, for example, may wish to restrict
access to that holiday resort to white, heterosexual visitors. Given that the
holiday resort provides a benefit and a service to the public, those people
who are excluded from enjoying the benefit are harmed as they will never
be able to enjoy the same privileges as the people accommodated by the
holiday resort. The question arises whether the holiday resort is entitled to
invoke the right to freedom of association to justify its discrimination
against black South Africans or against gay and lesbian South Africans.
When a holiday resort excludes a person because of his or her race or
sexual orientation, this can send a powerful signal to that person and the
group to whom he or she belongs that he or she is not equally valued in
society and cannot access the same benefits and services provided by the
ostensibly ‘private’ body that others can access.
In the following sections we explore the scope and content of the right to
freedom of association with reference to this dichotomy. As we will see, the
conundrum the courts often face is to balance the rights of individuals in the
association asserting their autonomy with those of others seeking access to
the association.

PAUSE FOR REFLECTION

Examples of issues raised by the

accommodation of diversity within the
framework of associational rights
The following examples illustrate the issues raised by the
accommodation of diversity within the framework of
associational rights.
The Afrikaanse Taal en Kultuur Vereeniging (ATKV) is a
cultural organisation that promotes Afrikaans culture and
Christianity. It owns a number of holiday resorts in various
parts of the country. These resorts are open to all who can
pay the entrance fee and the costs of hiring the bungalows.
However, members of the ATKV are entitled to a 20%
discount if they visit the resorts. To be admitted as
members, applicants have to commit to advancing the
Afrikaans culture and Christianity.
Mr Mohamed and Mr Omar regard themselves as
‘Afrikaners’ and have no difficulty committing to advancing
Afrikaans cultural interests. However, as they are Muslims,
they delete the part of the application form calling for a
commitment to advancing Christianity. As a consequence
of this, their application to join the ATKV is turned down.
Say that Mr Mohamed and Mr Omar were to challenge
the rules for joining the ATKV on the basis that these rules
unfairly discriminated against them on the basis of their
religion. The ATKV would then probably argue that
Christians have a right to freedom of association and that
this right should trump the right against unfair
discrimination.
In determining whether the ATKV acted lawfully by
excluding the Muslim applicants, a court will have to decide
which of the rights should prevail in the particular
circumstance. The answer the court gives will probably
depend on the importance it attaches to the right to non-
discrimination in relation to the right to freedom of
association. As we continue the discussion of freedom of
association, it would be helpful to keep in mind this
example.
Now imagine that the body that is discriminating against
Muslims is not the ATKV providing a public service in the
form of access to various holiday resorts, but a private
book club. Mr Van der Merwe hosts the book club in the
privacy of his own home in Waterkloof or Sandton. Mr Van
der Merwe started the book club with the specific aim of
creating a safe environment where he and his likeminded
friends could discuss books with a Christian theme
 (provided to the club by CUM Books), which they have all
eagerly read. Most people would probably instinctively
think that – unlike the ATKV – Mr Van der Merwe should be
allowed to discriminate against non-Christians. As the
nature of the benefit denied to others is limited and as the
association is of an extremely private nature, this view
would almost certainly conform to the legal position. As we
continue discussing this issue, it would be helpful to reflect
on what basis such a determination would be made.

13.2.2 The scope and content of the right to freedom of

association: general principles
The right to freedom of association protects the right of individuals:
• to associate with whom they wish
• to disassociate from whom they wish
• to form intimate bonds or relationships with others with whom they
share common interests or cultural or religious attitudes and beliefs
• to protect those relationships from untoward infringement by the state or
other powerful role players.
Importantly, the right to freedom of association supports the right to form
religious, cultural and linguistic associations to give greater expression to
the protection of cultural liberties. As such, freedom of association
safeguards the liberty of individuals to decide for themselves how they want
to live and with whom they want to associate in the private sphere. In the
United States context, Brennan J affirmed this point in Roberts v United
States Jaycees where he stated:
The Court has long recognized that, because the [United
States] Bill of Rights is designed to secure individual
liberty, it must afford the formation and preservation of
certain kinds of highly personal relationships a
substantial measure of sanctuary from unjustified
interference by the State.14
The constitutional shelter afforded such relationships reflects the realisation
that individuals draw much of their emotional enrichment from close ties
with others. Providing a degree of protection to these relationships from
unwarranted interference by the state and by powerful private bodies
therefore safeguards the ability of a person to define independently his or
her identity that is central to any concept of liberty.
Examples of intensely private relationships protected by this right
include the institution of marriage, the raising of children and cohabiting
with a person’s partner.15 In Roberts v United States Jaycees, Brennan J
distinguished those associations that have an intrinsic element of personal
liberty from associations situated at the other end of the continuum such as
large business enterprises. He correctly argued that the constitutional
constraints on the state’s power to regulate private intimate associations
were greater than the constraints on its power to regulate business
enterprises. The state’s power to control the selection of a person’s partner
in an intimate relationship is severely curtailed but not so in respect of
decisions to select employees.16
As a general rule, the more public the activity is and the further removed
the activity is from the intimate activities of an individual, the less likely it
is that the right to freedom of association will protect an activity and
prevent intrusion into or regulation of that activity. This is especially so
where the activity excludes others or is harmful to others. So, the state
cannot force a person to marry somebody of the opposite sex or of a
different racial identity as these activities are deeply personal and close to
the core of the individual’s private beliefs and attitudes. However, the state
may well prohibit a large company from discriminating against
homosexuals or against black people when employing staff or when
deciding whether to provide a service to them.
Between these two extremes lies a large number of voluntary, semi-
private associations that contribute towards the enrichment and happiness of
individuals in different ways. These associations are semi-private because
they fulfil some public function or provide a service or benefit to the public.
However, these semi-private associations constitute a grey area where it
will not always be easy to decide whether intrusion by the state or others
would be constitutionally warranted or not. The state’s reach into these
organisations depends on the nature of the organisation, the impact it has on
the public, the extent to which it regulates economic and social mobility,
and the constitutional right that the association furthers and protects.
According to Brennan J, the size, purpose, policies, selectivity, congeniality
and other characteristics of an association may be pertinent in determining
whether it should be subject to state regulation.17
When a court has to make a determination as to the constitutionality of
exclusionary practices, it will consider the nature of the constitutional right
a party seeks to enforce as well as the potentially negative effect this has on
the other party whose right the association seeks to enforce. Thus, if, on the
one hand, the association has been formed for commercial activities, thus
affecting the right to choose a trade, occupation and profession, the state
may have greater latitude in reaching into the domains of these associations.
If, on the other hand, the constitutional rights that the association seeks to
protect, promote and enhance relate to religion, culture and language, then
the reach of the state may be more circumscribed. Similarly, if the state
seeks to invade the associational rights of an organisation in a manner that
poses a real risk to the organisation’s members or if such an intrusion would
have a detrimental effect on individuals joining the organisation or
association, then courts may well attempt to protect such rights in a robust
fashion.

PAUSE FOR REFLECTION

The right to freedom of association

indispensable where a group holds dissident
beliefs
The National Association for the Advancement of Coloured
People (NAACP) is a civil rights non-governmental
organisation that seeks to ensure that black people in the
United States are accorded their constitutional rights. In the
1950s and 60s, they engaged in protest action and
litigation in many states in the south of the USA where
legally sanctioned racial discrimination was rife. In NAACP
 v Alabama,18 the state of Alabama demanded the names
and addresses of all the NAACP members in Alabama.
This would have enabled the state to see who was
contributing effort and funds to the organisation. The US
Supreme Court held that the compulsory disclosure of
membership lists would violate the associational rights of
members and that ‘privacy in group association may in
many circumstances be indispensable to preservation of
freedom of association, particularly where a group
espouses dissident beliefs’.19

Apart from safeguarding the liberty of individuals to decide for themselves

how they want to live and with whom they want to associate, associational
rights are also protected to prevent ‘capture’.20 Associations require their
members to expend time, energy and funds on building the organisation.
Members readily volunteer because of their commitment to the cause. The
right to freedom of association allows the organisation to adopt policies to
prevent persons with aims that are inimical to the objectives of the
organisation from ‘capturing’ the organisation and subverting its objectives.
Thus in Royal Society for the Prevention of Cruelty to Animals (RSPCA) v
Attorney-General,21 the English Court upheld exclusionary policies of the
RSPCA designed to remove and exclude members who wished to change
the society’s policy on hunting and blood sports. Given the RSPCA’s
commitment to the humane treatment of animals, policy changes favouring
hunting and blood sports would effectively result in the ‘capture’ of the
society and change its focus and emphasis. The Court held that the
RSPCA’s exclusionary policies were consistent with the Human Rights Act
of 1998. The close nexus between the objectives and the exclusionary
policies and the limited impact on the rights of the people denied admission
or excluded from the organisation adequately justified the policy of the
organisation and rendered it permissible.22
A corollary of the right to associate is the right to dissociate. Thus, in
Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston,23 the
US Supreme Court held that the right to dissociate included the right to
exclude unwanted members and unwanted messages. The organisers of a St
Patrick’s Day parade were willing to allow gay men and lesbians to
participate in the parade, but refused to allow them to march as a unit under
their own banners. The Court held that the parade organisers had a right to
refuse to endorse a message supporting gay rights which would be
conveyed by permitting the banners. The Court held that ‘it boils down to
the choice of a speaker not to propound a particular point of view, and the
choice is presumed to lie beyond the government’s power to control’.24

13.2.3 Societal interests overriding association rights

The right to freedom of association is not an unqualified right. As discussed
in the introduction to this chapter, a tension may arise between the right to
associate and the important interests of others and of the broader society.
Sometimes the state may therefore wish to interfere with the right to
freedom of association to secure the safety of society, to protect the dignity
of all citizens and to facilitate greater political participation.25 For example,
the state may ban criminal associations to protect society against the
dangers of organised crime. The state may also interfere with the right to
freedom of association to ensure that certain groups open themselves up to
a wider potential membership because such organisations control access to
important social goods. The extent to which the function being fulfilled by
the association fulfils a public function will also play an important role in
deciding on whether the association could be limited. The more the public
goods distributed by an association or the more public its function, the more
likely it is to be subject to legitimate state intervention.26 The state may
therefore interfere with the freedom of association in certain contexts. We
discuss examples of this in the sections that follow.

13.2.3.1 Equality
Certain associations may be required to ‘open themselves up to a wider
potential membership because they control access to important social
goods’.27 One way in which this is mandated in the South African context
is by the Promotion of Equality and Prevention of Unfair Discrimination
Act (PEPUDA).28 The PEPUDA asserts the primary importance of
equality concerns and presents a challenge to the right to freedom of
association. This is especially so because the PEPUDA seems to challenge
control over membership policies and the internal affairs of every private
organisation and institution in the country. As membership policies and the
organisation of internal affairs are often critical to an association’s identity,
the PEPUDA could, in effect, force a change in these policies. The
PEPUDA therefore represents a severe limitation on the general right to
freedom of association.29
Section 6 of the PEPUDA states that ‘[n]either the State nor any person
may unfairly discriminate against any person’. As we have seen in
chapter 12, when a private individual or organisation discriminates against
an individual, say by excluding that person from membership of the
organisation on the basis of his or her race, gender or sexual orientation, the
onus is on the party who discriminated to prove that the discrimination was
not unfair but rather that it was fair. Sections 14(2) and (3) of the PEPUDA
set out the factors a court must take into account when determining whether
the respondent has proven the discrimination to be fair. These factors are:
• the context
• whether the discrimination reasonably and justifiably differentiates
between persons according to objectively determinable criteria intrinsic
to the activity concerned
• whether the discrimination impairs or is likely to impair human dignity
• the impact or likely impact of the discrimination on the complainant
• the position of the complainant in society and whether he or she suffers
from patterns of disadvantage or belongs to a group that suffers from
such patterns of disadvantage
• the nature and extent of the discrimination
• whether the discrimination is systemic in nature
• whether the discrimination has a legitimate purpose
• whether and to what extent the discrimination achieves its purpose
• whether there are less restrictive and less disadvantageous means to
achieve the purpose
• whether and to what extent the respondent has taken such steps as are
reasonable in the circumstances to address the disadvantage which arises
 from or is related to one or more of the prohibited grounds or to
accommodate diversity.
A private organisation whose policies regarding admission discriminate
against an individual based on his or her sexual orientation, for example,
would have to argue that the exclusion is ‘intrinsic to the activity’ of that
organisation and that it is not based merely on prejudice or irrelevant
attitudes that fuel discrimination.30 The organisation may also argue that
the discrimination has a legitimate purpose and, as such, can be justified. In
each case, a court has to determine whether the discrimination is intrinsic to
the nature of the organisation and its purpose in the manner discussed in
chapter 12. In each case the association claiming a right to association in
potential conflict with the PEPUDA will have the burden of showing that
its associational interests trump the interests to equality. This will not
always be easy to do.

13.2.3.2 Democracy
The state may also interfere in the right to freedom of association in the
furtherance of the goals of democracy. This may require organisations in
certain contexts to structure their internal affairs in a more democratic and
egalitarian fashion.31 In each case the question would be to what extent the
state’s interest in the integrity of a democratic process and in the
maintenance and protection of a democratic society justifies the limitation
on the association’s right to order its affairs as it wishes and to pursue the
goals it was set up to pursue. The freedom of political parties to arrange
their internal affairs as they wish and to pursue the ends they were set up to
pursue will potentially be acutely affected by the need to safeguard
democracy. This will be less evident if we start from the premise that
political parties and other associations are largely private entities created to
pursue private ends.32 However, if our premise is that political parties and
other associations are essential for a functioning representative democracy,
a more onerous burden will fall on political parties to be structured along
democratic lines and not to pursue undemocratic ends.
In Germany, for example, the German Constitutional Court banned the
Socialist Reich Party (SRP) in 1952 and the Communist Party of Germany
(KPD) in 1956. According to article 21, paragraph 2 of the German Basic
Law, parties which, by reason of their aims or the behaviour of their
members, seek to impair or destroy the free democratic order or to endanger
the existence of the Federal Republic of Germany are unconstitutional.33
Thus, legislation may attempt to force political organisations to structure
themselves in a more democratic and egalitarian way.
In the United States, in Buckley v Valeo,34 the US Supreme Court
confirmed the constitutionality of laws requiring compulsory disclosure of
the source of campaign contributions over $10 and in respect of political
contributions of more than $100 per annum. The applicants in this case
argued that the laws violated the associational rights of minor parties and
small contributors. The Court held that associational rights were infringed.
However, the countervailing state interests were sufficiently important to
outweigh the limitation on the right to freedom of association.35 The
societal interests identified in this case were the need to help the electorate
evaluate the candidates standing for office by disclosing the identity of their
supporters, the need to avoid corruption and the appearance of corruption,
and the need to gather data required to enforce the contribution limits set
down in other laws.36
In Institute for Democracy in South Africa and Others v African National
Congress and Others,37 the High Court adopted a different approach. In
this case, the Institute for Democracy in South Africa (IDASA) brought an
application in terms of the Promotion of Access to Information Act (PAIA)
38 against all the major political parties for access to their donation records
regarding the date of donation, name of the donor, amount or value of the
donation and the conditions, if any, on which the donation was made or
received. In the main, the African National Congress (ANC) resisted the
application on the basis that there should be comprehensive legislation on
this issue as opposed to having to disclose information on an ad hoc basis.
The Court was of the opinion that the political parties for the purposes of
this application were to be regarded as private bodies. In terms of the PAIA,
an applicant had to demonstrate that they required the information from the
private body for the exercise or protection of any rights.39 One of the
arguments made by the applicants was that they required the records to
assist citizens to make more accurate political choices and to choose
between the various parties. Disclosure of financial benefactors would place
citizens in a better position to make these decisions. The Court was of the
view that this did not adequately demonstrate ‘how the donation records
would assist them in exercising or protecting any of the rights on which
they rely or why, in the absence of these donation records, they are unable
to exercise those rights’.40 It went on to hold:
On the face of it, section 19(1) prevents any restrictions
being imposed on a citizen’s right of making political
choices, such as forming a political party, participating
in the activities of and recruiting members for a party,
and campaigning for a political cause. Similarly, the
right to ‘free, fair and regular elections’ enshrined in
section 19(2) does not impose a duty on political parties
to disclose funding sources, nor does it afford citizens a
right to gain access to such records. The emphasis in
section 19(2) lies upon the elections and the nature of the
electoral process and not so much upon the persons or
parties participating in those elections.41
The application was unsuccessful. This interpretation of section 19 is
narrower than that required to develop a constitutional democracy. The right
to vote must include the right to make properly informed political choices.
Knowing the identity of the financial benefactors of political parties would
enable the electorate to know potential sources of influence in that party
and hence whether it is deserving of their vote. This information would
enable them to exercise their right in a more effective manner. Given these
arguments, the Court ought to have found that the information was required
for the exercise or protection of rights and then determined whether the
parties could refuse disclosure in terms of the exceptions listed in the PAIA.
In Ramakatsa and Others v Magashule and Others, the Constitutional
Court found that the Constitution requires political parties to act lawfully.42
In the context of section 19 of the Constitution, which guarantees for every
citizen the right to participate freely in the activities of a political party, the
Court found that there was a duty on every political party ‘to act lawfully
and in accordance with its own constitution’.43 This means that the
Constitution gives every member of every political party the right to exact
compliance with the constitution of a political party by the leadership of
that party. Courts can therefore scrutinise a political party’s constitution to
establish whether that party has acted in accordance with its own
constitution and may set aside decisions of that party where the party has
failed to adhere to its own constitution.44 The Court emphasised that in the
South African system of democracy, political parties ‘occupy the centre
stage and play a vital part in facilitating the exercise of political rights’.45
Therefore, political parties are indispensible conduits for the enjoyment of
some of the rights included in the Bill of Rights.46
Arguably, the implication of this judgment is that political parties must
operate in an essentially democratic manner and that political parties cannot
pursue policies that, at their core, are aimed at destroying the constitutional
democracy established by the Constitution. However, the Constitutional
Court has not provided a definitive answer on how to approach the question
of political parties whose aim is to overthrow our constitutional democracy.

CRITICAL THINKING

Is the infringement of the right to freedom of

association justifiable in the interests of
preserving constitutional democracy in South
Africa?
As we have seen, some political parties exercise significant
power in South Africa. In 2013, after Mr Julius Malema was
expelled from the ANC, he came together with other
interested individuals and formed a new political formation
called the Economic Freedom Fighters (EFF). The
Constitution of the EFF sets out its aims as follows:
 1. ECONOMIC FREEDOM FIGHTERS (EFF) is a Political
organization styled as a Political Party which seeks to act in
the interests of all South Africans striving for ECONOMIC
EMANCIPATION IN OUR LIFE TIME.
2. The EFF is anti-capitalist, anti-racist, anti-sexist and anti-
imperialist in its world outlook and is driven by sound
democratic socialist values where the leadership is
accountable to the membership which elected it.
3. The basic programme of the EFF is the complete overthrow of
the neo liberal anti-black state as well as the bourgeoisie and
all other exploiting classes; the establishment of the
dictatorship of the people in place of the dictatorship of the
bourgeoisie and the triumph of socialism over capitalism. The
ultimate aim of the EFF is the realization of socialism through
people’s power and the establishment of a state that responds
to the needs of its people.
4. The EFF is a vigorous vanguard organization leading the
revolutionary masses in the fight against the class enemy.
5. The EFF takes socialism as the theoretical basis guiding its
thinking and development of its political line and in this
respect identifies itself as a MARXIST, LENINIST, and
FANONIAN organisation.
6. Members of EFF, who dedicate their lives to the struggle for
socialism must be resolute, fearless and surmount every
difficulty to win victory! 47

The EFF Constitution thus states that one of its aims is the
overthrow of the current state and replacing it with a
‘dictatorship of the people’. Any move to prohibit the EFF
from participating in elections or from operating in South
Africa in line with these goals will be met by arguments
regarding freedom of association. If the EFF is banned and
individuals are prohibited from belonging to the party, it will
infringe on the right of freedom of association of everyone
as well as the right of every citizen to form a political party
and to take part in its activities guaranteed in section 19 of
the Constitution. The question that will face a court in such
an event is whether the infringement of the rights is
justifiable in the interests of preserving constitutional
democracy in South Africa.
13.2.4 Balancing rights
It is not uncommon for the right to freedom of association to clash with
other rights and the adjudicating body then has to strike an appropriate
balance between the competing rights. In Forum for Black Journalists v
Katy Katopodis,48 the Appeal Committee of the South African Human
Rights Commission (SAHRC) had to consider whether a group of black
journalists could constitutionally exclude white journalists from a meeting
of their organisation. The primary objective of the Forum for Black
Journalists (FBJ) is the ‘upliftment of black journalists in general and the
African in particular’.49 FBJ organised an imbizo which was addressed by
Mr Jacob Zuma, the President of the ANC, as part of its relaunch. This was
before Mr Zuma became President of South Africa. The FBJ directed
invitations exclusively to black journalists, but these invitations were not
restricted to members of the organisation. White journalists who attempted
to attend the imbizo were either denied entry or requested to leave.
The FBJ argued that the right to associate, especially of a private body,
includes the right to dissociate. All the FBJ had to demonstrate was a
rational connection between the discriminatory policy and the association’s
ends. It justified its closed membership by pointing to the legitimate
objective of preventing the dilution of its voice in its pursuit of substantive
equality. The white journalists contended that excluding them from the
meeting solely on account of their race amounted to unfair discrimination
on the basis of race.
The Appeal Committee of the SAHRC found that the FBJ could not be
described as an intimate or private association as its membership was open
to all black journalists in the country.50 It lay on the continuum between an
intimate or private organisation and an overtly public organisation.51 The
more public an organisation is, the more difficult it is to justify exclusions
in furtherance of the freedom of association.52 The Appeal Committee
found that the purpose of uplifting black journalists in general and Africans
in particular was a legitimate objective.53 In defence of its racially
exclusive admissions policy, the FBJ relied heavily on their right to
freedom of association. The Committee reasoned as follows:
The issue before us is whether the FBJ acted in a
constitutionally impermissible fashion when it decided to
exclude white journalists from its membership and
prevented them from attending the Imbizo. The assertion
by the respondent is that the rights to dignity and not to
be subjected to unfair discrimination on the basis of race
have been infringed by the policies and practices of the
appellant.
Not admitting white journalists on the basis of their race
to the Imbizo and excluding them from membership of
the FBJ on the same basis is clearly invasive of their
right to dignity. The issue is whether the benefits that
accrue to the organisation justifies [sic] this intrusion …
… , the Supreme Court of Appeal in Midi Television (Pty)
Limited t/a e-tv v Director of Public Prosecutions 54 had to
reconcile and balance the freedom of expression and the
right to a fair trial. The following was stated:
Where the constitutional rights themselves have the
potential to be mutually limiting – in that the full
enjoyment of one necessarily curtails the full
enjoyment of another and vice versa – a court must
necessarily reconcile them. They cannot be reconciled
by purporting to weigh the value of one right against
the value of another and then preferring the right that
is considered to be more valued, and jettisoning the
other, because all protected rights have equal value.
They are rather to be reconciled by recognising a
limitation upon the exercise of one right to the extent
that it is necessary to do so in order to accommodate
the exercise of the other (or in some cases, by
recognising an appropriate limitation upon the
exercise of both rights) according to what is required
 by the particular circumstances and within the
constraints that are imposed by Section 36.55
The judgment of the Appeal Committee of the SAHRC goes on to state:
In determining the extent to which the full exercise of
one right to the other or both of them might need to be
curtailed in order to reconcile them what needs to be
compared with one another are the ‘extent of the
limitation’ that is placed upon the particular right, on
the one hand, and the ‘purpose, importance and effect of
the intrusion’, on the other hand. To the extent that
anything needs to be weighed in making that evaluation
it is not the relative values of the rights themselves that
are weighed (I have said that all protected rights have
equal value) but it is rather the benefit that flows from
allowing the intrusion that is to be weighed against the
loss that the intrusion will entail. It is only if the
particular loss is outweighed by the particular benefit, to
an extent that meets the standard that is set by
section 36, that the law will recognise the validity of the
intrusion.
Thus the submission by the appellant that it can adopt a
racially exclusive membership policy provided that it
demonstrates a rational connection between its
discriminatory policy and the association’s ends is
inconsistent with comments made in the VA report and
with the dicta from Midi Television quoted above. The
FBJ has the right to form an association to uplift black
journalists and exclude persons whose objectives are
inimical to its founding values. FBJ used race as the
criterion and formed the view that all white journalists
should be excluded from their organisation. No
argument has been made as to why the less intrusive
admission policy which required a full commitment to
 the values and goals of the organisation would not have
been sufficient to protect its distinct ‘voice’ and identity.
The imprecise and blunt instrument of racial exclusivity
was relied upon notwithstanding the egregious impact of
exclusions upon people who may have supported the
broader objectives of the organisation. There is nothing
before us which leads us to conclude that the racially
exclusive membership policies and practices bring a
legitimate benefit to the FBJ which justifies the
infringement of the right to dignity of the persons
excluded on the basis of race. In the circumstances, we
find that the exclusion of the white journalists both from
the Imbizo and from membership of the FBJ is not
justified in terms of section 36 of the Constitution.56
The Appeal Committee of the SAHRC thus found against the FBJ in this
case. As will be apparent from the above, it is necessary to determine what
benefit accrues as a consequence of the exclusion. The benefit must then be
weighed against the cost occasioned by such exclusion. The courts will
sanction the exclusion if the benefit outweighs the cost of the exclusion and
is a reasonable and proportionate response.

CRITICAL THINKING

When can the right to freedom of association

justifiably be used to exclude others from
associating with the organisation?
This question is a source of great jurisprudential and moral
anxiety, partly because the ability to associate holds
potential financial and social benefits. Excluding some from
these benefits on the basis of personal attributes or
characteristics may therefore harm those who are
excluded.
 White suggests certain rules to deal with this difficult
question.57 The first rule or guideline White suggests is
that an exclusionary rule is presumptively legitimate if it is
purpose-protecting. In other words, if an exclusionary
rule is aimed at protecting the very purpose for which the
association was created, it will be presumed to be
legitimate.58
However, White suggests a second rule, namely that if
an exclusionary rule is opportunity-depriving, the rule
must presumptively be viewed as not being legitimate. In
other words, if by excluding individuals from the
association they are potentially deprived of opportunities, it
will be difficult to justify the exclusion.59
A third rule is that the presumption of legitimate
exclusion is especially strong if the rule is integrity-
protecting. In other words, where the formation of an
association is particularly important to allow an individual to
exercise his or her liberties of conscience or expression,
then there will be a strong assumption that the
exclusionary rule that safeguards this associational space
should be held as being legitimate.60
Of course, it will be clear that these three rules could
easily be in tension with one another. An exclusionary rule
that is purpose-protecting as well as integrity-protecting
can be so drastically opportunity-depriving that it would not
be held to be valid. For example, a rule that allows a
religious school to exclude female learners on the grounds
that male and female learners must be taught separately
may be both purpose-protecting and integrity-protecting.
But where that school offers a high-quality education and
provides its graduates with opportunities in life that are not
easily provided to others in the same community, the rule
may also be opportunity-depriving. This is because female
learners will be deprived in a drastic manner of some of the
 opportunities that are available to male learners.
Consequently, it is far from clear whether such a rule
conforms with the right to freedom of association.

13.3 Freedom of religion, belief and opinion

13.3.1 Introduction
Freedom of religion and conscience – the freedom to hold views about
religious and other moral issues and the freedom to practice those beliefs –
goes to the heart of what it means to be human in a modern democracy. In
the open and democratic society contemplated by the Constitution, both the
religious beliefs held by the great majority of South Africans as well as the
beliefs of non-believers and minority faiths must be fully respected.61 As
the Constitutional Court pointed out in Minister of Home Affairs and
Another v Fourie and Another:
For many believers, their relationship with God or
creation is central to all their activities. It concerns their
capacity to relate in an intensely meaningful fashion to
their sense of themselves, their community and their
universe. For millions in all walks of life, religion
provides support and nurture and a framework for
individual and social stability and growth. Religious
belief has the capacity to awaken concepts of self-worth
and human dignity which form the cornerstone of
human rights. Such belief affects the believer’s view of
society and founds a distinction between right and
wrong. It expresses itself in the affirmation and
continuity of powerful traditions that frequently have an
ancient character transcending historical epochs and
national boundaries. For believers, then, what is at stake
is not merely a question of convenience or comfort, but
 an intensely held sense about what constitutes the good
and proper life and their place in creation.62
However, non-believers may hold similarly strong and profound views
about the meaning of their lives not based on religious beliefs. This means
that religious beliefs or the absence of such beliefs – however honestly and
sincerely held – ‘cannot influence what the Constitution dictates’.63 This
conundrum highlights the fact that freedom of religion and conscience is a
right that demands serious engagement with the notion of diversity: how to
accommodate different and often diametrically opposed beliefs and views
about the world, while respecting and accommodating these diverse beliefs
and views.

PAUSE FOR REFLECTION

How religious are South Africans?

South Africans are truly diverse as far as their beliefs are
concerned. Although statistics differ widely depending on
who measures them, a 2011 survey found that the number
of people in South Africa who consider themselves
religious has dropped by 19%. According to the poll,
released by the Win-Gallup International Religiosity and
Atheism Index which measures global self-perceptions on
belief, religious South Africans dropped from 83% in 2005
to 64% in 2012.64 Official figures from the South African
census are different regarding religious adherence. Table
13.1 contains the latest available figures from the census
and provides a breakdown of those who adhere to various
religious beliefs in South Africa.
Table 13.1 Census statistics regarding adherents of
religious beliefs

Religion Adherents % Adherents %

 200165 2007 66

Christianity 35 750 641 79,77 29 684 861 73,52

Non-religious 6 767 165 15,10 3 262 428 8,08

Other 283 815 0,63

Buddhism/Chinese folk 12 113 0,03

Islam 654 064 1,46 985 460 1,45

Undetermined 610 974 1,36

Hinduism 551 668 1,23 504 707 1,25

African traditional belief 125 898 0,28 6 056 487 15,00

Judaism 75 549 0,17 68 640 0,17

To accommodate diversity in the realm of belief, section 15(1) of the Bill of

Rights guarantees the right of everyone to ‘freedom of conscience, religion,
thought, belief and opinion’ while section 15(2) deals with the
circumstances under which religious observance may be conducted in state
or state-aided institutions. In a heterogeneous and multicultural society like
South Africa, the protection of the right to freedom of conscience, religion,
thought, belief and opinion takes on a special significance. It signals the
Constitution’s unique concern with the protection of people with diverse
beliefs and opinions. It recognises the importance of accommodating the
views, opinions and practices of people with diverse world views and
religious beliefs that will often be in conflict with one another. This right
contained in section 15 is therefore an important right through which we
accommodate and carefully manage diversity in our society.
In this regard, the grouping together of the freedom of conscience,
religion, thought, belief and opinion is significant. The deliberate clustering
of these rights signifies the protection of the right to hold the religious
beliefs of a person’s choice, together with the right to entertain agnostic or
atheistic views and other beliefs. It thus protects the right to believe in a
particular God or Gods and the religious teachings associated with a belief
in that God or Gods; the right to remain uncertain about believing in a God
or Gods and the religious teachings associated with a belief in that God or
Gods; as well as the right not to believe in any God at all. In other words,
the fact that the right protects freedom of conscience, religion, thought,
belief and opinion indicates that the scope of its protection journeys beyond
protecting the right to believe in a supreme being.67
However, it is not only the right to believe or not to believe that is
protected by section 15 of the Bill of Rights. Section 15 also protects the
right to act in accordance with those beliefs or non-beliefs and for a person
to organise his or her life in a manner that demonstrates allegiance to the
particular chosen belief system. As pointed out by Sachs J in the
Constitutional Court judgment in Christian Education South Africa v
Minister of Education, the right of an individual to act or not to act in
accordance with his or her beliefs is one of the key ingredients of a person’s
human dignity.68 For many people, their relationship with their God or
creator is central to their being and often influences much of their
interaction both with their sectarian peers and with secular society.69 For
others, their rejection of the idea of a higher being or creator is central to
their personality.
The persecution of people because of their religious beliefs or their
refusal to believe has been the cause of intense conflict, upheaval and strife.
Such strife is often caused when the state treats one religion more
favourably than other religions or when the state treats religion or non-
religion in a more favourable manner. In this regard, the manner in which
the state treated religion during the apartheid era is significant. Prior to
1994, the state officially endorsed a certain version of Christianity and the
state was often described as a Christian Nationalist state.70 The apartheid
state passed several laws to promote a specific conception of the Christian
religion, giving credence to the perception that the state favoured a certain
narrow form of Christianity above other religions and above non-
religion.71 Primary and secondary education in public schools reserved for
white children was based on the principle of Christian national education
while education in schools reserved for black children had to have a
Christian character.72 The pre-democratic state also refused to recognise
the validity of marriages that did not conform to the Christian prototype.73
The judiciary, too, was not free from demonstrating a preference for
Christianity. In 1917, a South African judge even identified Christianity
with what he called ‘civilized peoples’.74
This history of preferential treatment for a certain version of Christianity
above other religions and non-religion does not mean that Christianity
should not be respected and protected as the dominant religion in South
Africa in the post-apartheid era. In fact, although the Constitutional Court
has insisted that the rights of non-believers and minority faiths must be
fully respected, it has also emphasised the need to respect the religious
beliefs held by the majority of South Africans.75 The Constitutional Court
has pointed out that while religion is an intensely personal issue, it would
nevertheless not be appropriate in all cases to relegate religious practices
and observance to the private sphere.76 Religious bodies play a large and
important part in public life through schools, hospitals and poverty relief
programmes. In addition, religious bodies ‘command ethical behaviour
from their members and bear witness to the exercise of power by state and
private agencies’.77 Religious bodies also ‘promote music, art and theatre’
and ‘provide halls for community activities’.78 As such, they form part of
the very fabric of society.79 However, the Court also warned that while this
role must be recognised, it must be done in a manner that does not infringe
on the rights of those who do not share the beliefs of the majority religion
as ‘[m]ajoritarian opinion can often be harsh to minorities that exist
outside the mainstream’ (our emphasis).80 What is needed is to strike a
balance between recognising and respecting the religious beliefs of the
majority and protecting those people and groups whose views do not
conform to that of the majority. The Court stated:
In the open and democratic society contemplated by the
Constitution there must be mutually respectful co-
existence between the secular and the sacred. The
function of the Court is to recognise the sphere which
 each inhabits, not to force the one into the sphere of the
other. Provided there is no prejudice to the fundamental
rights of any person or group, the law will legitimately
acknowledge a diversity of strongly-held opinions on
matters of great public controversy. I stress the
qualification that there must be no prejudice to basic
rights.81
By recognising the need to accommodate both the secular and the sacred
within the framework of managing a diverse society, section 15 of the
Constitution does not require a strict separation between the state on the one
hand and religious institutions and organisations on the other. In the
following sections we discuss the scope and content of the right to freedom
of conscience and religion. We explore the ways in which the religious
beliefs of the majority can be respected and recognised within the
constitutional framework while also providing protection for those people
who adhere to minority beliefs and those people who are not religious at all.

PAUSE FOR REFLECTION

The nuanced relationship between the secular

and the sectarian spheres of our society
The Constitutional Court considered the nuanced
relationship between the secular and the sectarian spheres
of our society in Fourie, a case that dealt with the
recognition of same-sex marriage. The Court had to
determine whether the non-recognition of same-sex
marriages was inconsistent with the Constitution. If so, the
Court had then to determine what needed to be done to
remedy the situation.
One of the arguments made was that if the law was
under-inclusive by not recognising same-sex unions, the
situation should be remedied by providing an appropriate
alternative form of recognition to same-sex unions and not
by accommodating these unions within the existing
institution of marriage. This argument was premised on the
religious belief of some that the institution of marriage is
restricted to the union of one man and one woman and
thus cannot be extended to include same-sex unions. To
extend the definition of marriage would, according to this
submission, amount to a significant infringement of the
right to freedom of religion of those people who believed in
the religious texts that defined marriage as the union of
one man and one women.
The Court recognised the broad and important role that
religion plays in the life of society through the provision of
schools and hospitals, by poverty alleviation programmes
and other initiatives that enrich people’s lives.82 According
to the Court, these activities form part of the fabric of a
diversified society and must be recognised as such.83
However, the Court reasoned that this did not mean that
religious texts must be used to interpret the Constitution.
There had to be a mutually respectful coexistence between
the secular and the sacred.84 The state should not
intervene in the spiritual or sacred sphere by pronouncing
on religious texts or by insisting that all religions solemnise
same-sex marriages. Similarly, when the state affords
same-sex couples the same status, entitlements and
responsibilities as heterosexual couples, it does not
impinge on the right of religious organisations that do not
wish to solemnise same-sex marriages.85 By doing so, it is
simply functioning within the secular sphere over which the
Constitution is supreme.86 Thus, the rights of the religious
groups functioning within their spiritual sphere will not be
affected by the recognition of same-sex unions by the
law.87
 Subsequent to the Fourie judgment, Parliament passed
the Civil Union Act.88 This Act recognises same-sex
unions which can now be described as marriages. In the
view of Parliament, having an alternative such as a civil
union for same-sex couples would amount to segregation
and would continue to reinforce negative stereotypes.
Hence, Parliament made the decision that parties could
refer to these unions as marriages should they choose to
do so. However, the Civil Union Act also allows religious
denominations to opt out of solemnising same-sex
marriages. The Act allows such religious denominations to
adhere to their particular views on the nature of marriage
while accommodating the need to respect the right to
equality of gay men and lesbians.

13.3.2 The scope and content of section 15(1) of the

Constitution
It is far from clear what the Constitutional Court’s understanding is of the
exact scope and content of the right to freedom of religion protected in
section 15(1). This is because a divided Constitutional Court differed
sharply on the scope and content of the right when it first had to decide on
its meaning in the case of S v Lawrence; S v Negal; S v Solberg.89
The starting point for understanding the scope and content of the right to
freedom of religion – agreed on by all the judges of the Constitutional Court
– is that our Constitution does not require a strict separation between the
state and religious bodies.90 This approach differs markedly from that
required by the United States (US) Constitution. The US Constitution
prohibits the state from setting up a church or passing laws which aid one
religion, aid all religions or prefer one religion over another. In the US it is
assumed that the US constitutional clause against the establishment of a
religion by law was intended to erect ‘a wall of separation between church
and State’.91 As Chaskalson J explained in the Lawrence case, the right to
freedom of religion in the South African Constitution – unlike the US –
does not include an ‘establishment clause’.92 The US view that a wall of
separation should be erected between religion and the state is not applicable
here.93 To read such a requirement into section 15:
would have far reaching implications beyond the
apparent scope and purpose of section 14 [now 15]. If
such obligations on the part of the state are to be read
into section 14 [now section 15] does this mean that
Christmas Day and Easter Friday can no longer be
public holidays, that ‘Family Day’ is suspect because it
falls on Easter Monday, that the SABC as public
broadcaster cannot broadcast church services (as it does
regularly on Sunday mornings, though it does not
regularly broadcast Muslim services on Fridays or
Jewish services on Saturdays or Hindu services on any
particular day of the week), that its daily religious
programmes must be cancelled, and that state subsidies
to denominational schools are prohibited? These
examples can be multiplied by reference to the extremely
complex United States law which has developed around
the ‘establishment clause’.94
The reason for the rejection of the US view can be found in section 15(2) of
the Constitution (discussed below) which allows for religious observances
to be conducted at state or state-aided institutions. This means that in the
South African context, the right to freedom of religion will not
automatically be infringed every time the state provides any benefit to a
specific religion or all religions in relation to non-religious groups. The
state is thus allowed to provide specific benefits to a religious institution
and to engage in activities that demonstrate reverence or respect for religion
in general.
It is within this broader context that the scope and content of the South
African guarantee of freedom of religion must be understood. Drawing on
the jurisprudence of the Canadian Supreme Court, all the judges of the
Constitutional Court also agreed that the essence of the right to freedom of
religion involves: 95
• ‘the right to entertain such religious beliefs as a person chooses’: In other
words, people have the right to choose their religious beliefs freely and
openly. Thus, an individual must be free from direct or indirect pressure
by the state or other sources when choosing religious beliefs. Religious
organisations cannot prevent people from leaving their fold and
converting to other religions. Preferring persons of a particular religion
when employing for state positions could amount to both unfair
discrimination on the basis of religion and an infringement of the right to
freedom of religion.
• ‘the right to declare religious beliefs openly and without fear of
hindrance or reprisal’: In other words, people have the freedom to
express their beliefs in public. People should never be compelled to
worship in private and the right to do so in public is an acknowledgment
that the broader society recognises and endorses this right. In a
democracy such as ours that celebrates diversity, worshippers should be
able to manifest their religious beliefs and practices publically.
• ‘the right to manifest religious belief by worship and practice by
teaching and dissemination’: In other words, people have the freedom to
engage in all the practices associated with their religion. For example,
members of the Muslim and Jewish faiths believe in the circumcision of
baby boys as part of practising their religion. Moreover, some Hindus
walk on a bed of burning coal as a form of penance and in worship of the
goddess Draupathi who they believe had to walk on burning coal to
prove her fidelity. Although minorities engage in these practices, they are
protected as they are an important part of the manifestation of their
religious beliefs. This is despite the majority disapproving or even
questioning the rationality of the practice.
In short, all the justices of the Constitutional Court agreed that the right to
freedom of religion is protected if there is an ‘absence of coercion or
constraint’ on a particular religious belief or practice.96 Freedom of
religion will ‘be impaired by measures that force people to act or refrain
from acting in a manner contrary to their religious [and, we assume, other
non-religious] beliefs’.97 Subsequent Constitutional Court judgments
essentially endorsed this view of the scope of the right to freedom of
religion.98 The Court also noted that the right to freedom of religion would
not only be infringed by acts of direct coercion. Actions by the state could
also run the risk of indirectly coercing individuals into certain religious
beliefs and practices. This was a particular danger when the power, prestige
and financial support of government were placed behind a particular
religious belief as it would place indirect coercive pressure on religious
minorities to conform to the prevailing officially approved religion.99
A far more difficult question that arose in the Lawrence case was
whether the state was required to treat all religions in a fair and equitable
manner. It is on this issue that the judges of the Constitutional Court
differed. Chaskalson J, writing for four justices of the Constitutional Court,
rejected the notion that the right to freedom of religion required the state to
act in an even-handed or equitable manner towards all religions.100
O’Regan J, writing for three justices of the Constitutional Court, however,
argued that the right to freedom of religion required more than the absence
of direct or indirect coercion to be fully and effectively protected.101 This
additional requirement of fairness or equity, argued O’Regan J, reflected ‘an
important component of the conception of freedom of religion contained in
our Constitution’.102 She stated:
Our society possesses a rich and diverse range of
religions. Although the state is permitted to allow
religious observances, it is not permitted to act
inequitably. In determining what is meant by inequity in
this context, it must be remembered that the question of
voluntary participation is a consideration separately
identified in section 14(2) [now section 15(2)]. The
requirement of equity must therefore be something in
addition to the requirement of voluntariness. It seems to
me that, at the least, the requirement of equity demands
the state act even-handedly in relation to different
religions.103
This did not mean complete neutrality but did require that observances
should not favour one religion over another.104 This judgment went on to
state that the purpose of the right was a rejection of past practices when
Christianity was deemed to be the favoured religion.105 Endorsement by
the state of any one religion would not be permitted as it would result in
indirect coercion and would amount to a threat to those wishing to exercise
other religious beliefs.106 O’Regan J concluded by holding that it is not
sufficient that there is no direct coercion of religious beliefs. In addition,
there had to be no inequitable or unfair preference of one religion over
others.107
In a separate judgment, Sachs J appeared to agree with the approach
adopted by O’Regan J when he held that the right to religious freedom does
not only prohibit the state from forcing people to act or refrain from acting
in a manner contrary to their religious beliefs, but also from endorsing or
favouring one particular faith, for example Christianity, over all others:
By endorsing a particular faith as a direct and sectarian
source of values for legislation binding on the whole
nation, [the State] exceeds the competence granted to it
by the Constitution. Even if there is no compulsory
requirement to observe or not to observe a particular
religious practice, the effect is to divide the nation into
insiders who belong, and outsiders who are tolerated.
This is impermissible in the multi-faith, heterodox
society contemplated by our Constitution.108
The difference between these positions is important and could lead to
different results in a particular case. Insisting on the requirement of equity
would require the state to act in a more even-handed manner regarding the
various religions. For example, the state officially recognises certain
Christian religious holidays, such as Easter and Christmas for example, but
refrains from officially recognising religious holidays of other religions. It
could be argued that the state is not treating the various religions in an
equitable manner as it is endorsing or favouring the Christian religion over
other religions and over non-religion.
PAUSE FOR REFLECTION

Defining the right to freedom of religion

In Lawrence, the applicants, who were supermarket
owners, sought to challenge certain sections of the Liquor
Act 109 which prohibited the sale of alcohol on closed
days. These days were defined as Sundays, Good Friday
and Christmas. They argued that the prohibition on the
sale of alcohol on the closed days infringed the religious
beliefs of non-Christians by forcing them to observe
Christian beliefs.
Chaskalson P, writing for himself and three other
justices, and applying the more restrictive definition of the
right to freedom of religion discussed above, held that a
Sunday had become a day of rest for most South Africans
and was not solely a Christian holiday.110 He held that the
supermarket owners were able to ply their trade on
Sundays and were only prohibited from selling wine.111
Chaskalson P held that the applicants did not satisfy the
court that this limited restriction amounted to a violation of
the right to freedom of religion because the impugned law
did not, in fact, coerce anyone into observing or not
observing a particular religious belief or practice.112
In Chaskalson P’s opinion, the right to freedom of
religion cannot be read as obliging the state to abstain from
any action that may advance or inhibit religion.113
However, he went on to hold that in some circumstances,
the advancement or endorsement of a particular religion
would have the effect of coercing a person, either directly
or indirectly, to observe or abide by the practices of that
religion.114 If such coercion is established, it would amount
to an infringement of the right to freedom of religion.115
 This judgment found that on the facts there was too
tenuous a connection between restrictions on the sale of
wines on Sundays and the Christian religion for this to be
deemed to be advancing Christianity and thus coercive as
far as non-Christians were concerned. Hence, he came to
the conclusion that the right to freedom of religion was not
infringed.116
As we have noted, O’Regan J framed the scope and
content of the right to freedom of religion more broadly.117
While acknowledging that the Constitution does not require
a strict separation between the state and religious
institutions, this judgment held that apart from being non-
coercive, legislation may not favour one religion over
others. This is because fairness and even-handedness in
relation to diverse religions is a necessary component of
the right to freedom of religion. Applying these principles to
the facts, O’Regan J found that the prohibition on the sale
of wine on days that are important to Christians endorsed
Christianity and thus infringed the right to freedom of
religion. In addition, O’Regan J found that this infringement
was not justifiable. The Liquor Act, therefore, was
unconstitutional and invalid.
In his separate judgment, Sachs J also found that the
Liquor Act infringed the right to freedom of religion because
it clearly endorsed Christianity. Unlike O’Regan J, however,
he went on to find that this infringement was justifiable and,
consequently, that the Liquor Act was constitutionally
valid.118 Sachs J, therefore, agreed with the order issued
by Chaskalson P.

Apart from the points set out above, it is also important to note that
religious activities often take place in a communal context. In recognition
of this fact, section 31 of the Constitution adds to the scope and content of
the right to freedom of religion. Section 31 of the Constitution deals with
the right of religious communities to practise their religion together with
other members of their community. The right can only be optimally
exercised if people of similar beliefs or faiths can assemble, jointly express
their beliefs, advance their religion and regulate their affairs. The right to
religious freedom, therefore, also includes the right to interact with fellow
believers to advance their religion and to regulate the religious affairs of
their organisations. This means an individual religious denomination must
have the right – to the extent that other rights do not limit this right – to
decide for itself on the rules for membership as well as the rules about the
behaviour of all members of the religious denomination. A fuller discussion
of the association rights contained in section 31 follows later in the chapter.
In the context of section 15, it is unnecessary to focus on whether a
specific belief is religious in nature or not as the section not only protects
the right to freedom of religion, but also to the right to freedom of
conscience, thought, belief and opinion. Nevertheless, it has been suggested
that to qualify as a ‘religious belief system’ a religion should have some of
the following features: ‘belief in a supreme being, belief in transcendent
reality, a moral code, a world view accounting for people’s role in the
universe, sacred rituals, worship and prayers, a sacred text, and membership
in a social organisation’.119
In the US context, it was held that the test should not be whether the
belief is objectively reasonable, but rather whether it forms part of the
practices and beliefs of that religion and whether persons belonging to that
religion genuinely and sincerely embrace the practice. The courts are
generally reluctant to question the genuineness of the belief if there is
evidence to suggest that the belief is sincerely held by the applicant. In
addition, the courts are generally reluctant to make determinations as to
whether the practice being restricted is central or foundational to the
religious beliefs. It is not the function of the court to interpret religious texts
or dogma. As O’Connor J, a former justice of the US Supreme Court, put it:
The dissent offers us the prospect of this court holding
that some sincerely held religious beliefs and practices
are not ‘central’ to certain religions, despite the
protestations to the contrary from religious observers
who brought the lawsuit. In other words, the dissent’s
 approach would require us to rule that some religious
adherents misunderstand their own religious beliefs. We
think that such an approach cannot be squared with the
Constitution or with our precedents, and that it would
cast the judiciary in a role that we never intended to
play.120
Ngcobo J expressed similar sentiments in his dissenting judgment in Prince
v President of the Law Society of the Cape of Good Hope.121 In this case,
the issue was whether the Drugs and Drug Trafficking Act 122 and
section 22A of the Medicines and Related Substances Control Act 123 were
inconsistent with the Constitution in that they did not grant an exemption to
Rastafarians to possess and use dagga for religious purposes. Ngcobo J
cautioned against being overly concerned with whether a particular practice
is central to the religion, stating that:
Apart from this, as a general matter, the Court should
not be concerned with questions whether, as a matter of
religious doctrine, a particular practice is central to the
religion. Religion is a matter of faith and belief. The
beliefs that believers hold sacred and thus central to
their religious faith may strike non-believers as bizarre,
illogical or irrational. Human beings may freely believe
in what they cannot prove. Yet, that their beliefs are
bizarre, illogical or irrational to others or are incapable
of scientific proof, does not detract from the fact that
these are religious beliefs for the purposes of enjoying
the protection guaranteed by the right to freedom of
religion. The believers should not be put to the proof of
their beliefs or faith. For this reason, it is undesirable for
courts to enter into the debate whether a particular
practice is central to a religion unless there is a genuine
dispute as to the centrality of the practice.124
PAUSE FOR REFLECTION

Determining whether a specific belief is religious

or not
The fact that it is very difficult to determine whether a
specific belief is religious or not is clearly illustrated by the
example set out below.
A ‘church’ whose central tenet is the right to file-share has been
formally recognised by the Swedish government.

The Church of Kopimism claims that ‘kopyacting’ – sharing

information through copying – is akin to a religious service.

The ‘spiritual leader’ of the church said recognition was a ‘large

step’. But others were less enthusiastic and said the church would
do little to halt the global crackdown on piracy.

The Swedish government agency Kammarkollegiet finally

registered the Church of Kopimism as a religious organisation
shortly before Christmas, the group said.

‘We had to apply three times,’ said Gustav Nipe, chairman of the
organisation.

The church, which holds CTRL+C and CTRL+V (shortcuts for copy
and paste) as sacred symbols, does not directly promote illegal file
sharing, focusing instead on the open distribution of knowledge to
all.

It was founded by 19-year-old philosophy student and leader Isak

Gerson. He hopes that file-sharing will now be given religious
protection.

‘For the Church of Kopimism, information is holy and copying is a

sacrament. Information holds a value, in itself and in what it
contains and the value multiplies through copying. Therefore
copying is central for the organisation and its members,’ he said in
a statement.

‘Being recognised by the state of Sweden is a large step for all of

Kopimi. Hopefully this is one step towards the day when we can
live out our faith without fear of persecution,’ he added’.125
In most constitutional democracies, issues concerning the right to freedom
of religion arise when legislation is passed or other governmental action
undertaken which aims to achieve a societal objective, but which
simultaneously is perceived as adversely affecting religious beliefs.
Superficially neutral laws may sometimes adversely affect the religious
rights of individuals. Thus, the aspect of the right that enables believers to
give expression to and manifest their beliefs in public and to engage in
practices associated with the religious beliefs of an individual is the
component most likely to be affected by state regulation. In addition to
clashes with state objectives, the exercise of the freedom of religion may
clash with the constitutional rights of others, including the right not to be
unfairly discriminated against. The courts generally attempt to balance the
competing imperatives.126 However, difficult issues arise when the right to
freedom of religion collides with the right not to be unfairly discriminated
against on the basis of, for example, gender and sexual orientation.
This question arose in the case of Strydom v Nederduitse Gereformeerde
Gemeente Moreleta Park.127 The Moreleta Park Dutch Reformed Church
appointed a music teacher, Mr Strydom, to teach music to the learners who
participated in the arts academy it had established. When the church
discovered that Strydom was in a same-sex relationship, it dismissed him
from his job. Strydom took the case to the equality courts established under
the PEPUDA. The church argued that its right to freedom of religion should
trump the right of Mr Strydom to non-discrimination on the basis of sexual
orientation. The Court found that unfair discrimination had indeed taken
place on grounds of sexual orientation. As Bilchitz explains:
On the facts, the Court found that Strydom’s work
‘involved no religious responsibilities at all’ and that he
had performed excellently in his job until then. Strydom
was not a member of the church and he was teaching as
an independent contractor. As such, he did not hold
himself out to be a role model to the students in their
religious lives. Consequently, Basson J found that the
impact on the church’s freedom of religion of keeping
Strydom in employment was ‘minimal’. On the other
 hand, there was an enormous impact on Strydom’s right
to equality and dignity. Strydom was also affected in a
material way, suffering from depression, unemployment
and being forced to sell his piano and house.
Consequently, the church did not succeed in discharging
its onus of proving that the discrimination was not
unfair. The case thus demonstrates clearly that the
protections against unfair discrimination in the
Constitution and the Equality Act may restrict the
autonomy of a religious association to refuse to employ
or dismiss individuals whom it deems unsuitable if such a
decision is based on grounds upon which discrimination
is prohibited.128

CRITICAL THINKING

Where to draw the line between a church’s core

activities and its other activities
In terms of the doctrines of the Catholic Church only men
can be ordained as priests. The prohibition on women
priests clearly discriminates against women on the basis of
sex and gender. Equally, however, the right of the church to
arrange its affairs in accordance with its own beliefs and
doctrines requires it to be able to discriminate against
women.
If a specific woman ever wished to challenge the
practice of the Catholic Church in South Africa, she may
want to invoke the precedent created by the High Court in
the Strydom judgment. However, a court would almost
certainly distinguish such a case from the Strydom case. It
would probably argue that the right to freedom of religion in
this particular case should trump the right of women not to
be discriminated against. This is because in Strydom the
church employed the music teacher as an independent
 contractor. The task of teaching music was far removed
from the core functions of the church.
Assume, however, that Strydom had not been a music
teacher but a dominee and that the Dutch Reformed
Church had adopted policies which precluded a gay man
or lesbian from becoming dominees. Then the Court would
almost certainly have found that the freedom of religion of
the church and those who belonged to it should trump the
rights of the individual dominee. Similarly, in a case where
a women challenges the male-only rule for the ordination of
priests in the Catholic Church, the courts would almost
certainly find in favour of the Catholic Church.
As these examples demonstrate, the line between
activities so closely associated with the core doctrines of a
church and its other activities may not always be easy to
draw in an individual case. This suggests that courts may
find it difficult to know how to deal with the accommodation
of diversity in a particular case.

13.3.3 The reasonable accommodation of religious

beliefs and practices
Issues of religious freedom often arise in contexts where seemingly neutral
and universal rules that reflect a particular religious orientation or belief
system are applied in a manner that may have the effect of marginalising or
negating the beliefs and practices of people from minority religions or
people who do not embrace any form of religion at all. For example, where
a school imposes a particular dress code or a particular disciplinary code
that applies equally to everyone, the code may nevertheless fail to
accommodate the practices of minority beliefs and religions. Thus, a school
dress code which prohibits all girls from wearing scarves or hats may
discriminate against Muslim learners and may thus infringe on the religious
freedom of such learners. Similarly, a disciplinary code which requires all
boys in a school to wear their hair in a short style may discriminate against
Rastafarian learners who are required to wear dreadlocks. In such cases, the
right to freedom of religion and the right not to be unfairly discriminated
against on the basis of a person’s belief or religion intersect. The manner in
which the law deals with such cases is to require the institution reasonably
to accommodate the beliefs and practices of all, regardless of their beliefs or
religious affiliations.
At its core, reasonable accommodation is the notion that sometimes the
community, whether it is the state, an employer or a school, must take
positive measures and possibly incur additional hardship or expense to
allow all people to participate and enjoy all their rights – including the right
to freedom of belief – equally. It ensures that we do not relegate people to
the margins of society because they do not or cannot conform to certain
social norms.129 In Christian Education, in the context of accommodating
religious belief in society, a unanimous Court identified the underlying
motivation of the concept as follows:
The underlying problem in any open and democratic
society based on human dignity, equality and freedom in
which conscientious and religious freedom has to be
regarded with appropriate seriousness, is how far such
democracy can and must go in allowing members of
religious communities to define for themselves which
laws they will obey and which not. Such a society can
cohere only if all its participants accept that certain basic
norms and standards are binding. Accordingly, believers
cannot claim an automatic right to be exempted by their
beliefs from the laws of the land. At the same time, the
State should, wherever reasonably possible, seek to avoid
putting believers to extremely painful and intensely
burdensome choices of either being true to their faith or
else respectful of the law.130
The notion of reasonable accommodation has arisen directly only in cases
such as Pillay, in which the litigant alleged that he or she was being
discriminated against on the basis of his or her religion. However, the
notion of reasonable accommodation also finds application indirectly in
cases where the freedom of religion of a litigant has been infringed and the
court has had to decide whether this infringement was justifiable in terms of
the limitation clause (discussed in chapter 10). Because the outcome of
most freedom of religion cases turns on the application of the limitation
clause, it is important to note how the notion of reasonable accommodation
indirectly affects the application of the limitation analysis in freedom of
religion cases. This notion can be illustrated by two cases in which the
Constitutional Court found (or assumed) that a breach of section 15 had
occurred. The Court then had to decide whether the limitation was
justifiable or not in terms of the limitation clause. The Court did not directly
invoke the concept of reasonable accommodation in either of these cases.
However, we contend that the cases turned on whether the law reasonably
accommodated the religious beliefs and practices of the relevant group and
hence whether the limitation of the group’s religious freedom was, in fact,
justifiable.
In Christian Education, the applicants challenged section 10 of the South
African Schools Act (SASA) 131 which prohibited corporal punishment in
all schools, including independent parochial schools.132 The applicants
were an umbrella body of 196 independent Christian schools. The schools
were originally established to promote evangelical Christian education. The
applicants argued that section 10 was unconstitutional as it infringed their
rights to freedom of religion and to cultural life. They referred to various
verses in the Christian Bible which countenance and, in some instances,
prescribe corporal punishment as an appropriate means of disciplining
children. For instance, Proverbs 22:15 provides: ‘Foolishness is bound in
the heart of a child, but the rod of correction shall drive it far from him.’
Proverbs 23:13 and 14 provide: ‘Do not withhold discipline from a child, if
you punish with a rod he will not die. Punish him with a rod and save his
soul from death.’ The applicants contended that corporal punishment was
therefore a vital aspect of the Christian religion. They argued that by
prohibiting its use when parents had consented to it, the state was
unjustifiably interfering with their freedom of religion.
The Constitutional Court had no doubt that the parents sincerely believed
that their religious rights were being infringed by the law.133 The Court
held that freedom of religion may be ‘impaired by measures that coerce
persons into acting or refraining from acting in a manner contrary to their
beliefs’.134 The Court went further and recognised that religious practices
involve interaction with fellow believers and thus section 31 of the
Constitution makes provision for the practice of religion in community with
others.135 The Court ‘assumed without deciding’ that section 10 of the
SASA limited the parents’ religious rights under sections 15 and 31 of the
Constitution.136 Having made these assumptions, the Court turned to the
issue of whether it was reasonable and justifiable in an open and democratic
society for the state to limit these rights in terms of section 36 of the
Constitution.
The key question in this case, therefore, was whether the failure of the
law to accommodate the applicants’ religious beliefs by means of an
appropriate exemption was reasonable and justifiable. The main purpose of
the SASA was to create uniform norms and standards for all schools. The
main objective of section 10 of SASA was to reduce the level of violence in
our schools and to protect children from maltreatment, abuse or
degradation. The blanket ban on corporal punishment was meant to convey
a principled stance affirming the dignity of learners. Granting an exemption
to the applicant would detract from this and would be difficult to
administer. The infringement, according to the Court, did not oblige parents
to make ‘an absolute and strenuous choice between obeying the law of the
land or following their conscience’.137 Except for not being able to
authorise educators to administer corporal punishment, the schools were not
prevented from fully exercising their religious beliefs. Thus, the law was
achieving an important objective while the intrusion on the religious rights
of the applicants was limited.138
The Court concluded that making an exception would detract from the
symbolic, moral and pedagogical purpose of reducing the level of violence
in schools.139 In the circumstances, the Court concluded that the law was
reasonable and justifiable and hence not unconstitutional.140 In this case,
the limited infraction of the freedom of religion was outweighed by the
important objectives that the law was designed to achieve. The flexibility of
the limitation clause enables the courts to engage in these balancing
exercises.
 In Prince, the Law Society formed the view that the applicant was not a
fit and proper person and refused to register his articles as a candidate
attorney. The Society reached this conclusion because the applicant had two
previous convictions for the possession of dagga. The applicant had also
indicated that he intended to continue using dagga as part of his religious
practices.
The Constitutional Court held that Rastafarianism is a religion although
it does not have a centralised organisational structure.141 The use of dagga
is one of the ways in which believers of this religion manifest their
belief.142 Thus, the statutory limitation on the use of dagga is an
infringement of the applicant’s right to freedom of religion.143 However,
the Court was sharply divided on whether the law, which made an exception
only for the medical use of the drug, was justifiable in terms of the
limitation clause. The majority upheld the law and found against the
applicant on the basis that it would not be administratively feasible to make
a religious exception for the users of dagga as it would be difficult to police
and oversee.144 According to the majority, it would be difficult to police a
private activity of this nature in the absence of a formally organised
religious structure, stating that:
There is no objective way in which a law enforcement
official could distinguish between the use of cannabis for
religious purposes and the use of cannabis for recreation.
It would be even more difficult, if not impossible, to
distinguish objectively between the possession of
cannabis for the one or the other of the above purposes.
Nor is there any objective way in which a law
enforcement official could determine whether a person
found in possession of cannabis, who says that it is
possessed for religious purposes, is genuine or not.
Indeed, in the absence of a carefully controlled chain of
permitted supply, it is difficult to imagine how the island
of legitimate acquisition and use by Rastafari for the
purpose of practising their religion could be
 distinguished from the surrounding ocean of illicit
trafficking and use.145
The minority were of the view that the statute was overbroad and not
carefully tailored to ‘constitute a minimal intrusion upon the right to
freedom of religion’.146 The law, according to the minority, was
unconstitutional as it did not allow for the religious use of cannabis that was
not necessarily harmful and which could be controlled more effectively.147
The inherent flexibility of the limitation clause allows the courts to
assess whether the law that infringes aspects of the right to freedom of
religion is proportionate. As the Prince case demonstrates, even the judges
of the highest court may differ in their determination of what is reasonable
in the circumstances. In essence, the state must identify a societal objective
which the governmental action advances, the attainment of which justifies
the right being infringed. The courts then ask the additional question of
whether the societal objective could reasonably be achieved by a less
intrusive limitation of the right. The governmental conduct limiting the
right will only pass constitutional muster if the courts are satisfied that the
importance of the societal objective sought to be achieved outweighs the
adverse effects of the limitation on the right to freedom of religion.
Ultimately, both the prohibition on corporal punishment and the prohibition
on the use of dagga except for medicinal reasons were upheld even though
both measures infringed aspects of the right to freedom of religion.

PAUSE FOR REFLECTION

An example of reasonable accommodation

The requirement that various religious beliefs and practices
have to be accommodated in a reasonable manner can be
illustrated with reference to a specific example. Imagine
that Claremont High School in Cape Town has been
besieged by ill-discipline and in some instances learners
have attacked educators. Imagine further that in a specific
incident a grade 12 learner stabbed an educator who had
 reprimanded the learner for being drunk at a sports event
hosted by the school.
Now, it would not be surprising if the school, in an effort
to improve the teaching and learning environment, adopted
a code of conduct after consultation with the learners, the
parents and educators. Such a code could, among others,
expressly forbid learners from bringing to school knives,
daggers or other weapons or instruments that could cause
harm to the learner, other learners or staff at the school.
On the face of it, such a rule would seem to be
eminently reasonable. However, the rule would have a
disproportionate impact on Sikh learners. This is because
according to the Reht Maryada, the official Sikh Code of
Conduct, a Sikh must at all times carry five items, including
a kirpan, on his person. According to this code, a kirpan is
a dagger that represents the power of truth to cut through
untruth. A Sikh learner would therefore be able to argue
that the seemingly neutral code of conduct infringed on his
right to freedom of religion, read with his right not to be
discriminated against on the basis of his religion, because
it would prohibit him from wearing the kirpan to school. In
deciding whether the code should make an exception for
Sikh learners, the court would have to employ the principle
of reasonable accommodation.148

13.3.4 The right not to believe in any God

As we noted above, section 15 of the Constitution protects both the right to
freedom of religion and the right to freedom of other beliefs and
conscience. As such, it also protects a person’s right not to believe in a God
and not to have to participate in any religious practices such as prayers and
the singing of hymns. In Torcaso v Watkins,149 the US Supreme Court
invalidated a state law which required all public office holders to declare
that they believed in God prior to assuming public office. The Court held
that the free exercise clause prevented government from either awarding
benefits or imposing burdens based on a person’s religious beliefs or lack of
religious belief.150 Our courts have held that this free exercise in the US
Constitution is similar to the right to freedom of religion and conscience
protected by section 15 of the South African Constitution. Similar
sentiments were expressed by Sachs J in Lawrence when he held:
South Africa is an open and democratic society with a
non-sectarian state that guarantees freedom of worship;
is respectful of all and accommodatory towards, rather
than hostile to or walled-off from, religion; acknowledges
the multi-faith and multi-belief nature of the country;
does not favour one religious creed or doctrinal truth
above another; accepts the intensely personal nature of
individual conscience and affirms the intrinsically
voluntary and non-coerced character of belief; respects
the rights of non-believers; and does not impose
orthodoxies of thought or require conformity of conduct
in terms of a particular world-view.151
The breadth of section 15 signifies that our society must not act punitively
towards non-believers by withholding benefits or imposing burdens on
them because of their non-belief. However, it is probable that if a non-
believer is discriminated against, he or she will rely on the right not to be
unfairly discriminated against on the basis of conscience and belief rather
than the right to freedom of religion, belief and conscience.

13.3.5 Conducting religious observances at state

institutions: section 15(2) of the Constitution
As we noted above, the South African Constitution – unlike its US
counterpart – does not require a complete separation between the state and
religion. The South African Constitution does allow some entanglement
between the state and religion. Section 15(2) of the Constitution makes this
clear when it states that religious observances may be conducted at state or
state-aided institutions on condition that:
• these observances follow rules made by appropriate public authorities
• they are conducted on an equitable basis
• attendance at these observances is free and voluntary.

Religious observance must be distinguished from religious education.152

Religious observance refers to the acts or rituals of a religious character
usually conducted at public events such as at school assemblies, at the
opening of Parliament or at the start of a soccer match. Religious education
refers to education that occurs inside the classroom about the beliefs and
teachings of various religions. It is only religious observances that have to
comply with the conditions listed in section 15(2) if the observances are to
be held at state or state-aided institutions. The primary purpose of this
provision is to regulate equitably the conducting of prayers at school. In
Lawrence, the Constitutional Court held that equitable treatment does not
require equal treatment of all religious affiliations and beliefs in a public
institution and held:
In the context of a school community and the pervasive
peer pressure that is often present in such communities,
voluntary school prayers could also amount to the
coercion of pupils to participate in the prayers of the
favoured religion. To guard against this, and at the same
time to permit school prayers, S14(2) [section 15(2) in the
final Constitution] makes clear that there should be no
coercion. It is in this context that it requires the
regulation of school prayers to be carried out on an
equitable basis. I doubt whether this means that a school
must make provision for prayers for as many
denominations as there may be within the pupil body;
rather it seems to me to require education authorities to
allow schools to offer prayers that may be most
appropriate for a particular school, to have that decision
taken in an equitable manner applicable to all schools,
and to oblige them to do so in a way which does not give
rise to indirect coercion of the ‘non-believer’.153
According to this judgment, a state or state-aided institution would not be
required to provide for religious observance to be conducted in a manner
that would accommodate every single form of religion, as well as all forms
of non-religion, in such an institution. So, say 90% of the pupils at a school
profess to be Christian, 9% profess to be Muslim and the other 1% profess
other religions or no religion at all. The school would then probably have to
accommodate both Christian and Muslim observance in proportion to the
number of pupils adhering to these religions. However, the school would
not have to provide for religious observance for the remaining 1% of pupils
as long as everyone is given a free choice to attend or not to attend such
occasions where religious observance is conducted. This is because the
observance must be equitable. The requirement that the observance must be
equitable does not require absolutely equal treatment of all religious beliefs.
Mureinik argues that equitable refers to the observances being fair and
just.154 Excusing learners from minority religious groups from attending
prayers of the majority religion may satisfy the requirement of being free
and voluntary. However, it may not satisfy the requirement that it also be
just and equitable especially in cases where minority religions are adhered
to by at least a sizable number of members of that institution.155
It appears that this would require the schools to accommodate reasonably
all those religions that have a sizeable number of adherents among the
learners. It would not be permissible to determine the religion of the
majority of learners and accommodate only that particular religion. Much
more is required than merely giving expression to majoritarian sentiments.
The overt endorsement of a particular religion by a public school, given the
age and impressionability of learners, will probably be unduly coercive and
a violation of the right to freedom of religion of those learners belonging to
other religions.
State-aided institutions refer to those institutions, including educational
institutions, which the state funds extensively and regulates heavily.156
Thus, the Court in Wittmann v Deutscher Schulverein did not regard private
or independent schools as state-aided institutions for the purposes of
section 15(2) even though they are recipients of state funding.157 This must
be correct. It would be incongruent to permit institutions to set up their
religion-based schools at their own expense in terms of section 29(3) of the
Constitution and then also to oblige them to conduct religious observances
in an equitable, free and voluntary manner. The purpose of section 29(3) is
to enable religious organisations to set up parochial schools and propagate
their religion. They thus cannot be compelled to act in the manner required
by section 15(2) of the Constitution. However, all public schools are bound
by section 15(2) and cannot have a preferred or favoured religion.

13.3.6 Legislation recognising religious and traditional

marriages: section 15(3)(a)(i) of the Constitution
In terms of the common law, marriage was defined as the union of one man
and one woman to the exclusion of all others. This common law definition
applies to marriages concluded in terms of the Marriage Act.158 Couples
married under Muslim, Hindu and customary law could not use the
Marriage Act to conclude a valid marriage in terms of the common law.
This means that the state did not officially recognise, in the same manner as
common law marriages solemnised in terms of the Marriage Act, marriages
of couples that were concluded in accordance with Muslim, Hindu or
customary law and who did not also conclude a marriage in terms of the
Marriage Act. This obviously constituted a form of discrimination on the
basis of religion or custom. In Ismail v Ismail,159 for example, the
appellate division refused to recognise a Muslim marriage on the basis that
it was potentially polygamous. Thus any claim based on the polygamous
union was also regarded as void and unenforceable.
However, section 15(3)(a)(i) of the Constitution states that the guarantee
of freedom of religion and the requirements for equitable treatment of
religions as far as observance in state and state-aided institutions is
concerned ‘does not prevent legislation recognising marriages concluded
under any tradition, or a system of religious, personal or family law’. This
subsection therefore allows for legislation to be drafted which recognises
marriages concluded under traditional or other religious systems such as
Hinduism and Islam. It permits legislative intervention to rid our law of
some of the chauvinistic attitudes of the common law as exemplified in the
judgment in Ismail.
 The wording of section 15(3)(a)(i) is curious.160 The premise on which
section 15(3) is based is that laws recognising traditional forms of marriage
may infringe on the guarantee in section 15(1). It is difficult to see how the
state recognition of marriages recognised by religious, personal or family
law would violate the religious rights of others in society. This is so because
a law recognising different forms of marriage will not coerce individuals
who do not intend to conclude such marriages to believe or not believe
anything or to enter or not enter forms of marriage that conflict with their
religious beliefs. The only reasonable explanation is that the Christian
definition of marriage of one man and one woman may be offended by laws
recognising polygamous marriages. However, it is unclear whether this
section was necessary at all. This is illustrated by the case of Fourie where
it was contended that allowing the institution of marriage to be extended to
include same-sex couples would fundamentally infringe deeply held
religious beliefs. However, the Constitutional Court held that the
Constitution allowed an accommodation of both the secular and the sacred:
The function of the Court is to recognise the sphere
which each inhabits, not to force the one into the sphere
of the other. Provided there is no prejudice to the
fundamental rights of any person or group, the law will
legitimately acknowledge a diversity of strongly-held
opinions on matters of great public controversy. I stress
the qualification that there must be no prejudice to basic
rights. Majoritarian opinion can often be harsh to
minorities that exist outside the mainstream. It is
precisely the function of the Constitution and the law to
step in and counteract rather than reinforce unfair
discrimination against a minority. The test, whether
majoritarian or minority positions are involved, must
always be whether the measure under scrutiny promotes
or retards the achievement of human dignity, equality
and freedom.161
Given this requirement of coexistence, the Court found that recognising the
rights of gay men and lesbians to marry did not mean that religions that
believed that marriage was the union of one man and one woman had to
solemnise gay and lesbian marriages. They could refuse to solemnise gay
and lesbian marriages if doing so would run counter to their belief and
creed.162 However, recognition by the state would not result in a violation
of the right to freedom of religion of those religions that were opposed to
gay and lesbian marriages.163
It is important to note that any laws passed in terms of section 15(3) must
be consistent with other provisions of the Constitution. Thus, section 15(3)
would not sanction a law which unfairly discriminates against women in the
marital relationship even if the law gave expression to a particular
traditional or religious belief. The challenge facing Parliament when
drafting laws recognising marriages consecrated in terms of religious or
traditional law is to interfere as little as possible with the tenets of the
religion concerned. In addition, these laws must also provide effective
security and stability to the parties in a manner which accords with the
Constitution.
To give effect to traditional cultural beliefs, Parliament passed the
Recognition of Customary Marriages Act (RCMA).164 The RCMA
represents ‘a belated but welcome and ambitious legislative effort to
remedy the historical humiliation and exclusion meted out to spouses in
marriages which were entered into in accordance with the law and culture
of the indigenous African people of this country’.165 The RCMA was
passed to deal specifically with customary law. It was inspired by the
dignity and equality rights as well as the normative value system of the
Constitution.166 Section 1 of the RCMA defines customary law as
‘customs and usages traditionally observed among the indigenous African
peoples of South Africa and which form part of the cultures of those
peoples’. The RCMA defines a customary marriage as ‘a marriage
concluded in accordance with customary law’.167
Insofar as customary marriages are concerned, it is important to note that
most of the customary law systems that apply in South Africa differentiate
between men and women. This is because men may marry more than one
woman while women may not marry more than one man. Unfortunately, it
is not clear whether this differentiation is constitutionally valid or not.168
On the one hand, it could be argued that polygamous marriages unfairly
discriminate against women and that section 15(3), therefore, should not
authorise the recognition of such marriages. On the other hand, it could be
argued that the RCMA prevents the most egregious forms of discrimination
against women, among others, by requiring the consent of the first wife
before a husband may conclude a subsequent polygynous marriage. In
addition, section 6 of the RCMA also states that:
A wife in a customary marriage has, on the basis of
equality with her husband and subject to the
matrimonial property system governing the marriage,
full status and capacity, including the capacity to acquire
assets and to dispose of them, to enter into contracts and
to litigate, in addition to any rights and powers that she
might have at customary law.
Section 7(6) goes on to provide that:
A husband in a customary marriage who wishes to enter
into a further customary marriage with another woman
after the commencement of this Act must make an
application to the court to approve a written contract
which will regulate the future matrimonial property
system of his marriages.

PAUSE FOR REFLECTION

Do the customary principles and rules that

govern polygamous marriages pass
constitutional muster?
The discussion on polygamous marriages illustrates that
constitutional issues cannot always be solved with
reference to a single section of the Bill of Rights. When
considering whether the principles and rules of customary
 law that govern polygamous marriages are constitutionally
valid, it would not be sufficient to invoke section 15(3) to
arrive at an answer. We would also have to refer to the
right to equality guaranteed in section 9 of the Constitution
and would specifically have to engage with the
Constitutional Court’s jurisprudence around the meaning of
section 9(3) to arrive at the correct constitutional answer to
this problem.
Given these complexities, it remains an open question
whether the customary principles and rules that govern
polygamous marriages would pass constitutional muster.
Despite the provisions of the RCMA which go a long way
towards protecting women in polygamous marriages, in
most customary law systems women are not allowed to
enter such marriages. This raises serious questions about
whether the customary law principles and rules that govern
customary marriages show proper respect for the equal
dignity of women. Given these serious questions was it
correct for Parliament to pass a law recognising
polygamous marriages simply on the basis that a number
of communities in South Africa engage in and endorse this
practice on the basis that it accords with their cultural or
religious beliefs? Polygamy allows a man to take multiple
wives – does this unfairly discriminate against women?

13.4 The rights of cultural and religious

communities

13.4.1 The individual nature of these rights and how

other rights both qualify and enhance them
Section 30 of the Constitution guarantees everyone the right to use the
language and participate in the cultural life of their choice. Section 31
guarantees every person belonging to a cultural, religious or linguistic
community the right, together with other members of that community, to
enjoy their culture, practise their religion and use their language, and to
form, join and maintain cultural, religious and linguistic associations and
other organs of civil society. Both these sections, however, provide
explicitly that these rights may not be exercised in a manner that is
inconsistent with any of the other provisions of the Bill of Rights.
The rights guaranteed in sections 30 and 31 lie at the heart of the
protection of diversity. As the Constitutional Court has pointed out, these
rights ‘underline the constitutional value of acknowledging diversity and
pluralism in our society’.169 They stem from the recognition that we are
different in the sense that we do not all share the same language, religion or
history and do not embrace the same cultural practices and assumptions. As
such, these rights acknowledge that South Africa is a diverse society of
many languages, cultures and religions and they affirm, embrace and
celebrate this diversity.
The rights guaranteed in sections 30 and 31 of the Constitution are also
enhanced by some of the other provisions of the Bill of Rights.
Section 9(3), for example, prohibits unfair discrimination on the basis of,
among others, religion, culture and language and section 15(1) provides that
everyone has the right to freedom of religion. Section 29(2) provides that
‘[e]veryone has the right to receive education in the official language or
languages of their choice in public educational institutions where that
education is reasonably practicable’. Apart from these provisions, the rights
guaranteed in sections 30 and 31 are also enhanced by section 6 of the
Constitution. Although it does not form a part of the Bill of Rights,
section 6 requires the state proactively to advance the use of official
languages that were previously neglected and to treat various languages
with ‘parity of esteem’.170
Like the right to freedom of association, the rights guaranteed in
sections 30 and 31 of the Constitution are not group rights. Instead, they are
primarily rights that belong to the individual. The Constitution does not
protect the rights of groups at all. It protects only the rights of individuals
who may best exercise their rights in association with others. As Sachs J
pointed out in Christian Education:
 The protection of diversity is not effected through giving
legal personality to groups as such. It is achieved
indirectly through the double mechanism of positively
enabling individuals to join with other individuals of
their community, and negatively enjoining the state not
to deny them the rights collectively to profess and
practise their own religion (as well as enjoy their culture
and use their language).171
The rights guaranteed in sections 30 and 31, therefore, allow individuals to
assert their rights to advance the objectives of specific cultural, religious or
linguistic organisations or institutions as well as their own rights as
members of such bodies.172 Despite their decidedly individual character,
cultural, religious and linguistic rights are usually best exercised in
association with others and these rights are therefore sometimes described
as associational individual rights. The hybrid scope of these rights
complicates their application. This is because the interests of individuals to
associate with other individuals and to express their identity as members of
a cultural, religious or linguistic group may lead to restrictions on the rights
of others to participate in the life of that community. An individual’s
interests protected by sections 30 and 31 may therefore clash with the
interests of other individuals who could be excluded from participating in
communal life by the exercise of this right.173
The challenge facing the drafters of the Constitution was to protect these
rights in a manner that was consistent with a non-racial democracy based on
majority rule and which protects individual rights. This is exactly why the
exercise of these rights is explicitly made subject to the other rights
protected in the Bill of Rights, including to the right not to be unfairly
discriminated against in section 9. An individual therefore cannot exercise
his or her right to associate with other members of a linguistic or cultural
community in a manner that would unfairly discriminate against others.
Given that other rights could qualify and limit the rights guaranteed in
sections 30 and 31 of the Constitution, they must be interpreted and applied
in conjunction with the other rights in the Bill of Rights. In addition, the
rights guaranteed in sections 30 and 31 are also partly advanced in an
indirect manner through the exercise of other rights. The right not to be
unfairly discriminated against on the basis of race, ethnic or social origin,
colour, religion, belief, culture and language in section 9(3), for example,
indirectly advances these rights. Other examples include section 16(2)
which deems hate speech based on race, ethnicity, gender or religion to be
unprotected speech and section 29(3) which protects the rights of everyone
to establish and maintain, at their own expense, independent institutions
that do not discriminate on the basis of race, are registered with the state
and maintain appropriate standards.

13.4.2 The international protection of cultural liberties

The rights protected in sections 29(3), 30 and 31 are sometimes referred to
as cultural liberties.174 The cultural liberties they are seeking to protect
are a vital part of human development. As a United Nations report stated:
Cultural liberty is a vital part of human development
because being able to choose one’s identity – who one is –
without losing the respect of others or being excluded
from other choices is important in leading a full life.
People want freedom to practice their religion openly, to
speak their language, to celebrate their ethnicity or
religious heritage without fear or ridicule or punishment
or diminished opportunity. People want the freedom to
participate in society without having to slip off their
chosen cultural moorings.175
Human beings are social creatures who derive satisfaction when interacting
with people who share their values, aspirations and concerns. Language,
cultural and religious associations afford people the opportunity to engage
in activities that are immensely important to them. Society as a whole
benefits from this, hence the constitutional protection of these activities.
A religious or cultural organisation that is established, funded and
operated to promote a particular culture, religion or language should be able
to protect the financial and other investments of its members. If the law is to
protect cultural liberties, then it must provide the means for cultural,
religious and linguistic organisations, in pursuit of constitutionally
permissible goals, to avoid capture.
At an international level, various treaties protect these cultural liberties:
• Article 22 of the International Covenant on Civil and Political Rights
(ICCPR) 176 protects the right to freedom of association with others.
• Article 10 of the African Charter on Human and People’s Rights 177
protects the right of every individual to free association, provided he or
she abides by the law.178
• Article 27 of the ICCPR protects the rights of ethnic, religious and
linguistic minorities, in a community with other members of their group,
to enjoy their own culture, to profess and practise their own religion and
to use their language.
• Article 2 of the Declaration of Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities 179 obliges states to
protect the national or ethnic, cultural, religious and linguistic identity of
minorities as well as their existence. States are required to encourage
conditions for the promotion of that identity. Article 2(2) entrenches the
right of people belonging to minorities to establish and maintain their
own associations.
To safeguard further these cultural liberties and to provide institutional state
support, section 185 of the Constitution provides for the establishment of
the Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities (CRL Commission). The primary
purpose of this Commission is to promote respect for the rights of cultural,
religious and linguistic communities. The CLR Commission is empowered
to carry out a number of responsibilities including:
• conducting educational programmes to promote respect for and further
the protection of cultural, religious and linguistic rights
• monitoring, investigating and researching issues
• educating, lobbying, advising and facilitating the resolution of friction
between cultural, religious and linguistic communities.180
The CLR Commission, like other institutions protected in Chapter 9 of the
Constitution, is independent and is accountable to the National Assembly
(NA). All organs of state are obliged to assist and protect all Chapter 9
institutions to ensure their independence, impartiality, dignity and
effectiveness. Finally, there is a constitutional obligation on these Chapter 9
institutions to be impartial and to exercise their powers and perform their
functions without fear, favour or prejudice.181

13.4.3 An analysis of the scope and content of

sections 30 and 31 of the Constitution
The Constitutional Court has described these rights as ‘associational
individual rights, namely those rights which cannot be fully or properly
exercised by individuals otherwise than in association with others of like
disposition’.182 It is apparent that sections 30 and 31 draw heavily from
article 27 of the ICCPR. There are also some differences between the
wording of the two provisions. In Christian Education, the Constitutional
Court made the following general observations about sections 30 and 31:
• Sections 30 and 31 do not refer to ‘minorities’ unlike article 27 of the
ICCPR.
• Sections 30 and 31 effectively protect the rights of individuals to practise
their religion, speak their language and enjoy their culture with others in
communities which they constitute.
• Individuals are best able to exercise these rights within the context of the
community. Individual rights to make choices about whether they want
to associate with some and not others therefore lie at the heart of these
rights.
• Most open and democratic societies are tolerant and accepting of cultural
pluralism. These rights acknowledge the respect for diversity and give
greater content to the generic right to freedom of association. People can
be who they are without the need to conform to the practices and
expectations of the majority. These rights permit the right to be different.
• These rights are protected through the double mechanism of enabling
individuals to associate with others of their community and by
preventing the state from denying them the right collectively to exercise
 their cultural, religious and linguistic rights. Thus, section 30 is
positively phrased and gives everyone the right to use the language and
participate in the cultural life of their choice. In contrast, section 31 is
phrased in the negative and provides that persons may not be denied the
right with other members of their community to enjoy their culture,
practise their religion and use their language.
• The state provides institutional support in the form of the CLR
Commission to assist in the better enjoyment of these rights.
• Given their numbers, majority communities often have more effective
access to the political process. Minority communities engaging in
practices that the majority may regard as bizarre or unusual may not as
easily have access to the legislative and policy-making processes. The
Constitution manifests its respect for diversity by having these various
measures to protect the cultural, religious and linguistic rights of
communities.183
These cultural liberties are rights which individuals exercise most
effectively in associations formed to advance their interests. It is thus proper
to afford people the protected space in which to give expression to their
preferences, to prevent the state from unreasonably interfering in their
affairs, to provide institutional support to resolve disputes and to provide
assistance to some communities that lack capacity.
It is often easier to identify and verify a religious as opposed to a cultural
practice or belief. Cultural practices evolve and change, often in an
incremental and imperceptible manner. While organised religious bodies
usually regulate religious practices, there is a lack of similar supervisory
bodies that exercise oversight over the divergent cultural activities. Because
of the difficulties associated with objective verification, it is sometimes
difficult to determine whether the asserted practice is a genuine cultural
activity that the law should protect. Culture is not static and can change.
Moreover, different individuals who associate with a specific cultural group
or practice may have different views about what the exact nature of the
cultural belief or practice might be.
The Constitutional Court in Pillay provided some guidance as to what
amounts to a cultural belief. The Court contrasted the South African
approach to the approach adopted by English courts. The English courts
have offered a definition of what constitutes an ‘ethnic group’,184 stating
that such a group must have a long shared history and cultural tradition of
their own.185 Other relevant factors include common geographical origin, a
common language, a common literature peculiar to the group and a
common religion different from that of neighbouring groups. Thus it is a
combination of religion, language, geographical origin, ethnicity and artistic
traditions which determines the culture of a person. The Court in Pillay was
of the view that this definition was too restrictive and said a wider
definition should be adopted. However, the Court pointed out that if too
wide a meaning is given to culture, ‘the category becomes so broad as to be
rather useless for understanding differences among identity groups’.186
As it was unnecessary to resolve the question of what exactly constitutes
a protected cultural belief or practice in the context of this case, the Court
did not provide any workable definition for it. It merely found that the
applicant in the case was part of the South Indian Tamil cultural group
which, in any event, fell within the narrow definition of culture.187 A
cultural practice is enjoyed in association with others and therefore the
factors suggested by the English courts provide a useful starting point to
assess any assertion of a cultural practice. It is apparent that the
Constitutional Court was inclined to afford a significant measure of latitude
as to what would qualify as a cultural belief. A very wide interpretation
could lead to personal predilections or preference being elevated to cultural
practices to claim constitutional protection.
It is also clearly undesirable for the courts to have to determine whether
the practice is an appropriate manifestation of that particular culture. The
greater the number is of people who engage in the practice in the particular
cultural community, the more likely it is to be deemed a genuinely held
cultural belief. If the belief or practice is highly contested in the cultural
community itself, the Court is more likely to require clearer proof from a
person asserting the belief to demonstrate that it is a genuinely held cultural
belief.
As pointed out above, these religious, cultural and linguistic rights
contain a so-called internal qualifier as the enjoyment of these rights is
made subject to the other rights protected in the Bill of Rights. In other
words, unlike other rights in the Bill of Rights, both section 30 and
section 31 are qualified by the proviso that the rights may not be exercised
in a manner inconsistent with any provision of the Bill of Rights. This does
not mean that other rights will always trump a section 30 or 31 right
whenever there is a clash between any of those other rights and sections 30
and 31, no matter how trivial the inconsistency. Often, issues of
inconsistency arise when an association refuses admission to an individual
or where an individual who was a member of the association is expelled or
denied some of the benefits or privileges that he or she previously enjoyed.
For example, a cultural group may believe that it is wrong to be gay or
lesbian. If the group now discovers that a member is secretly gay and expels
that member, they discriminate against him on the basis of sexual
orientation which is prohibited by section 9(3) of the Constitution. In such a
case, given the importance afforded by the Constitutional Court to the right
against non-discrimination and given the harmful effect on gays and
lesbians, the rights in sections 30 and 31 may have to give way to the right
against unfair discrimination.

PAUSE FOR REFLECTION

A clash between rights

The clash between the right to cultural association versus
the right not to be unfairly discriminated against is
illustrated in the online news report set out below:
“Kleinfontein – There are no signs that say “Whites Only.” There
are, though, men in military fatigues who log the license plates of
vehicles approved to enter Kleinfontein, a rural enclave that is
home to about 1 000 Afrikaner whites. And there is a bust of
Hendrik Verwoerd, the former South African leader who
spearheaded white racist rule.

This exercise in separate, self-sufficient living near the South

African capital, Pretoria, is more than just a throwback to the
apartheid era that ended with the country’s first all-race elections in
1994. In recent days, Kleinfontein and its campaign to be formally
recognized as a township have become a touchstone for fresh
debate about law, freedom and the kind of “rainbow nation” that
South Africa is trying to be.

Kleinfontein, which is all private property, requires its residents to

be Afrikaners, descendants of settlers who arrived from Europe
centuries ago and speak Dutch-based Afrikaans, the idiom of South
Africa’s former overseers. That brings accusations of racism in a
nation whose population of over 50 million is mostly black, but the
community skirts race references in its manifesto. Descendants of
British settlers, for example, would not be welcome to live here.

The community is not organized “on the basis of race,” said Jan
Groenewald, chairman of the board of directors of Kleinfontein,
which means “Little Fountain” in Afrikaans. Instead, he said, the
goal is to preserve a cultural bedrock that stretches back to the lore
of the hardy Voortrekker settlers.

The dig-in mindset at the austere settlement echoes that of its

ancestors, who drew ox wagons into a defensive circle, a tactic that
helped them defeat a much bigger Zulu force at the Dec. 16, 1838
Battle of Blood River. The date has near-mystical import for
staunch Afrikaners, though the vast majority of whites accepted
South Africa’s new, multi-racial order in 1994 as part of a
negotiated settlement.

“We are here to stay,” read Afrikaans-language signs outside

modest brick-and-tile homes linked by dirt roads in Kleinfontein.

Residents don’t pay taxes on municipal services because they

don’t receive them. They draw water from a spring and are building
a sewage system. There is a cafe, a primary school and a care
centre for the elderly. Zebra, antelope and wildebeest roam in one
part of the fenced, 721-hectare (1,780-acre) property. Residents buy
many of their goods from outside the fence.

“If I was a racist, we wouldn’t speak to a black. We wouldn’t do

business with them,” said Annatjie Oncke, a 49-year-old house
cleaner living in a caravan park. She and other poor residents do
the kind of menial labour reserved for blacks in the era when whites
were in charge. Kleinfontein also has engineers and other skilled
workers, as well as retirees.

In the past, small bands of Afrikaners have sought to establish

enclaves elsewhere in South Africa, notably in the Northern Cape
community of Orania, founded in 1990. Nelson Mandela, South
Africa’s first black president, travelled to Orania in 1995 and had
coffee there with Verwoerd’s widow in a show of racial
reconciliation. Verwoerd was assassinated in 1966.
Kleinfontein has been around almost as long as Orania, but is now
under scrutiny in part because it wants local authorities to
recognize it as an entity with the right to run its own affairs. The
Times, a South African newspaper, reported that provincial
lawmakers were informed last year that black police officers were
barred from entering the enclave.

Last week, members of the Democratic Alliance, a political party,

protested outside Kleinfontein.

“By creating a ‘whites-only’ area, this community is saying that it

has no respect for people who are different from them. It is saying
that it fears people who are different,” said Mbali Ntuli, the party’s
youth leader.

On Wednesday, Kgosientso Ramokgopa, the mayor of Pretoria and

surrounding areas, visited Kleinfontein as part of an inquiry into its
alleged failure to comply with municipal planning laws. Delegations
of the two sides met in a hall with a corrugated iron roof, a church
bell mounted outside in a scaffold.

Ramokgopa noted the right of every citizen to “reside in any part of

the country,” while Groenewald, Kleinfontein’s chairman, spoke of
the right to “self-determination.”

The mood was diplomatic and jovial at times. Ramokgopa joked

about “koeksusters,” a fried, sugary snack favoured by his
Afrikaner hosts. Groenewald referred to Mandela’s leadership, but
also hinted at his resolve with a mention of Koos de la Rey, a
general in the 1899-1902 Anglo-Boer war who did not want conflict
but fought hard when it began.

South Africa’s national flag does not fly in Kleinfontein, though

some residents were seen recently with the “Vierkleur” (“Four-
color”), the flag of the Transvaal republic, which in the 19th century
formed part of what is now South Africa. A community member
handed out a declaration that complained of betrayal and
persecution of the “Boer-Afrikaner nation,” and described South
African democracy as a sham.

“We find ourselves exiles in our own fatherland,” the statement

said. “We experience this new dispensation not as a democracy,
but as the dictatorship of an alien majority.” 188
In Christian Education, the Constitutional Court held that section 31(2) was
intended to ensure that practices offensive to the Bill of Rights were not
shielded by the protection afforded by section 31(1):
It should be observed, further, that special care has been
taken expressly to acknowledge the supremacy of the
Constitution and the Bill of Rights. Section 31(2) ensures
that the concept of rights of members of communities
that associate on the basis of language, culture and
religion, cannot be used to shield practices which offend
the Bill of Rights. These explicit qualifications may be
seen as serving a double purpose. The first is to prevent
protected associational rights of members of
communities from being used to ‘privatise’
constitutionally offensive group practices and thereby
immunise them from external legislative regulation or
judicial control. This will be particularly important in
relation to practices previously associated with the abuse
of the notion of pluralism to achieve exclusivity, privilege
and domination. The second relates to oppressive
features of internal relationships primarily within the
communities concerned, where section 8, which regulates
the horizontal application of the Bill of Rights, might be
specially relevant.189
Despite the provisos in sections 30 and 31, the associational rights are not
presumptively inferior and of less weight than the rights to equality, dignity
and other rights.
A ‘constitutionally offensive group practice’ in this context means any
exclusionary policies, rules or conduct adopted or applied by a religious,
linguistic or cultural organisation and which are not permitted by the
Constitution. The issue is whether the rules or conduct of the communities
are consistent with the Constitution. In deciding whether these policies,
rules or conduct are permitted, regard must be had to whether the rule or
conduct is reasonable and justifiable. This involves a balancing of the rights
of the individual being denied access against the purpose that the rule or
conduct is seeking to achieve. In addition, an assessment needs to be made
as to whether the rule or conduct is proportionate. Thus, the rights of the
organisation or community have to be weighed and balanced against the
infraction of the individual rights.
Clearly, the impact on the complainant is of central importance in this
deliberation. The more egregious the violation is, the less likely it is that it
will be deemed fair. In Lovelace v Canada,190 the applicant challenged a
Canadian federal statute, the Indian Act 1970. This Act provided that a
Canadian Indian woman who married a non-Indian could not be registered
as an Indian. Ms Lovelace married a non-Indian. As a consequence of the
law, she was denied the right to return to her native home in the Tobique
Reservation in Canada. She argued that the law excluded her from living
her life as an Indian. In addition, it specifically resulted in her losing the
cultural benefits of living in an Indian community and of having emotional
ties to her home, family, friends and neighbours. The United Nations
Human Rights Committee upheld the complaint as the exclusion of
Lovelace from the tribe meant that she was not able to enjoy her cultural
rights as an Indian. This drastic intrusion was not reasonable and necessary
to preserve the identity of the tribe.
Ms Lovelace simply had no other forum or association, other than the
tribal area, within which to exercise and enjoy her cultural rights. Her
exclusion thus meant an eradication of her right to enjoy her culture. This
was impermissible given the fact that article 27 of the ICCPR protects the
right to cultural associations. The cost that she had to bear was
disproportionate and excessive when compared to the potential benefit that
would accrue to the tribe as a consequence of the law. Section 31 of the
Constitution is materially similar and it is likely that a similar outcome
would have been reached through an application of the limitation clause.
The manner in which the rights of the organisation or community must
be weighed and balanced against the infraction of the individual rights is
also illustrated in the case of Taylor v Kurtstag NO and Others.191 The
applicant and his wife had voluntarily submitted to the jurisdiction of the ad
hoc Beth Din (Jewish Ecclesiastical Tribunal) and requested that it arbitrate
on the custody of their children and on the maintenance to be paid. The
applicant did not comply with the findings and was effectively
excommunicated. The applicant sought to set aside the edict of the Beth Din
that effectively excommunicated him from Jewish society for failing to
comply with its decision. He argued that the edict 192 conflicted with his
individual rights to religion and to cultural association. The edict, according
to the community, was the only means available to it to ensure compliance
with the rulings of the Beth Din.
The Court enquired into whether the limitation of the applicant’s rights
could be justified by reference to the associational rights of the community.
The Court concluded that the limitation on the applicant’s rights was
reasonable and justifiable as a failure to enforce the Beth Din’s rulings
would result in the Jewish faith not being able to protect the integrity of
Jewish law.193 The associational rights of the organisation took precedence
over the personal rights of the individual.194 In reaching its conclusion, the
Court assessed the full extent of the limitation on the rights of the applicant
and weighed this against the associational rights of the organisation.195
Malan J concluded:
At the core of this dispute is a matter of religious
doctrine: in all religions there are rules entailing
consequences if the rules are broken. It does not follow
that a contravention of the rules will invariably lead to
the conclusion that, because the member’s rights of
dignity have been infringed, the infringement is
unconstitutional. Were this the position, it would be
impossible for voluntary organisations, particularly
religious communities, to require conformity with
particular values and to impose sanctions for the
contraventions.196
The Court went on to hold that the purpose of the edict was to punish, to
maintain standards and to encourage the dissenter to return by complying
with the ruling.197 In the circumstances, the Court held that the community
had not acted in a constitutionally offensive manner and upheld the
edict.198
 As stated earlier, the courts have to balance the rights of the individual
who has been shut out of the organisation or community and the rights of
the community or organisation to protect its identity. Where an individual
asserts that his or her constitutional right has been infringed by another
private person or entity and that the other entity seeks to justify the
limitation by reference to his or her own rights, then sections 8(2) and (3) of
the Constitution have application. Section 8(2)provides:
A provision of the Bill of Rights binds a natural or a
juristic person if, and to the extent that, it is applicable,
taking into account the nature of the right and the nature
of any duty imposed by the right.
Section 8(3) provides:
When applying a provision of the Bill of Rights to a
natural or juristic person in terms of subsection (2), a
court –
(a) in order to give effect to a right in the Bill, must
apply, or if necessary develop, the common law to the
extent that legislation does not give effect to that
right; and
(b) may develop rules of the common law to limit the
right, provided that the limitation is in accordance
with section 36(1).
In terms of sections 8(2) and 8(3), an individual can rely on a right in the
Bill of Rights against another natural or juristic person. Where both sides
are asserting rights in support of their positions, the courts will use the
limitation clause enquiry to determine whether the limitation of the rights is
reasonable and justifiable. The relationship between natural and juristic
persons in so far as it pertains to cultural, religious and linguistic
relationships is most likely to be regulated by the common law or by
customary law. The directive contained in section 8(3) enables the courts to
reshape and develop the common law by balancing the conflicting rights.
 In Lovelace v Canada, the law completely cut off the applicant from her
community and she was not able to practise her culture outside that
community. The law which was designed to protect this community was
disproportionate and excessive in the sanction it visited on those who
married persons outside the tribe. In contrast, in the case of Taylor v
Kurstag, the Court was of the view that the punishment was required to
ensure that the edicts of the Beth Din were respected. In any event, the
applicant would be readmitted if he complied with the edict.
The possibility of readmission to the community if there was compliance
with the edict distinguishes Taylor from Lovelace. The choice facing
Lovelace was stark and unpalatable. She had to choose between her
marriage and her community. The law should never require persons to make
such painful choices. By way of contrast, the applicant in Taylor had to
abide by the decision of a process to which he had voluntarily subjected
himself and he would have been readmitted to the community. Thus, what
was being asked of him was not particularly onerous and the community
required compliance with rulings of its religious tribunal. This resulted in
the Court’s conclusion that the community in Taylor had acted reasonably
and justifiably.
The Constitutional Court adopted a similar approach in Bhe and Others v
Khayelitsha Magistrate and Others.199 In this case, the Court had to
consider inconsistencies between aspects of customary law and the right not
to be unfairly discriminated against on the basis of sex and birth. Ms Bhe
and the deceased lived together and two children were born of the
relationship. The deceased applied for and obtained state housing. At the
time, the Black Administration Act (BAA) 200 regulated intestate
succession of black people. The BAA read with the regulations provided
that intestate succession had to be implemented in accordance with
customary law. Customary law provided that the eldest male who is related
to the deceased qualified as heir while women were not permitted to
participate in intestate succession. This is referred to as the rule of
primogeniture. When the deceased died, his father, who resided in the
Eastern Cape, was appointed sole heir. The father wanted to sell the house
to defray the funeral expenses. The effect of this was that the two minor
children would have been rendered homeless. The applicants, on behalf of
the minor children, contended that the primogeniture rule violated their
right to human dignity and equality.
The Court held that in the past, customary law was interpreted through
the prism of the common law and its content was ascertained from an
analysis of the codes and from the views of experts. This resulted in it
becoming stagnant and incapable of development and growth.201 The
Constitutional Court affirmed that customary law is now an integral part of
our law. Courts must now analyse and interpret customary law in
accordance with the Constitution and make adjustments to bring its
provisions into line with the spirit, purport and objects of the Bill of
Rights.202
The Court assessed the primogeniture rule in context. It found that the
heir succeeded not just to the assets, but also had to take responsibility for
the preservation and perpetuation of the family unit. As property was
collectively owned, the family head held it for the entire unit.203 However,
circumstances had changed significantly and nuclear families have replaced
extended families as the principal family unit. Now the male heir would
acquire the assets but not necessarily the responsibility to provide support
and maintenance as was required in the past.204 Thus, applying the rule in
the context where the applicants lived in the Western Cape and the heir to
the estate resided in the Eastern Cape would not accord with the original
objectives of the law.205 The Court emphasised that customary law had to
evolve and develop to keep pace with changed circumstances.206 It found
that the exclusion of women from inheritance was a clear violation of
section 9(3) of the Constitution.207 It found further that this exclusion
violated the right to human dignity as it was premised on the belief that
women are not fit to administer and own property. As such, the limitation
that the rule imposes on rights was not reasonable and justifiable in an open
and democratic society.208
The Court was of the view that the legislature was in the best position to
intervene and safeguard the rights of those violated by the primogeniture
rule.209 However, in the interim and pending the promulgation of the
remedial law, relief had to be afforded to those whose rights were being
violated by the rule. In this case, the victims were among the most
vulnerable in the society.210 As an interim measure, the Court held that the
Intestate Succession Act 211 was also to apply to all intestate deceased
estates that were formerly governed by the BAA.212
The approach adopted by the Court was to test the primogeniture rule
against constitutional rights. Having found that the rule infringed various
rights, the Court determined that the infringements were not reasonable and
justifiable. This meant weighing the rights that were infringed against the
purpose or objective of the rule. In this case, the rule had had relevance and
importance at a time when the extended family system was the norm for
African people. However, the rule had much less relevance in the current
situation. In effect, the rule was no longer achieving a laudable societal
objective that justified the infringements of constitutional rights. Customary
rules, notwithstanding their antiquity, can now be tested against
constitutional provisions and could be changed if found to be inconsistent
with the Constitution. The courts now have the power in terms of
section 8(3) to effect these changes to bring principles of the common law
and customary law in line with the Constitution.
In Gumede (born Shange) v President of the Republic of South Africa
and Others, the Constitutional Court also effected changes to customary
law to bring it into line with the Constitution.213 The RCMA provides that
customary marriages concluded after the year 2000 are deemed to be in
community of property. Marriages concluded before that date had to be
regulated by customary law. Mrs Gumede was married prior to 2000 and
her husband instituted divorce proceedings. In terms of the customary law,
as codified by the KwaZulu Act on the Code of Zulu Law 214 and the Natal
Code of Zulu Law,215 the husband was deemed to the head of the family
and the owner of all the property. The consequence of this was that in
respect of a customary law marriage concluded before 2000, a wife was not
entitled to any of the matrimonial property on dissolution and was subject
to the marital power of the husband.
In Gumede, the Constitutional Court held that these provisions of
customary law discriminated, among others, on the basis of gender. These
unequal proprietary consequences applied only to women in customary
marriages concluded before 2000.216 The Court held that the presumption
of unfair discrimination was not rebutted and there was no justification for
this rule.217 The Court found that the section of the RCMA which
distinguished between marriages concluded before 2000 and those
concluded after that date was also unconstitutional.218 The net effect was
that all customary marriages are to be deemed to be in community of
property.
In both the Bhe and Gumede cases, customary law provisions were found
to offend against the right not to be unfairly discriminated against on the
basis of gender. In both instances the Court materially changed the
substance of the law to bring it into line with the Constitution. It may be
advisable for the custodians of customary law such as the House of
Traditional Leaders proactively to reappraise those aspects of customary
law that may violate the Constitution and develop them in a way that
accords with the Constitution. In this way, they remain the main role
players in the development of this area of the law. It will afford them the
opportunity to make customary law more relevant and more applicable to
current circumstances. Failure to do so will leave the courts with no
alternative but to develop customary law as they did in these cases. It is also
important to emphasise that the Court did not simply make declarations of
invalidity and leave it to the vagaries of the legislative and political process
to fashion a remedy. In both cases, the law was changed to provide effective
relief to the successful applicants. Clearly, if the legislature is not satisfied
with the changes made by the Court to the law, it is at liberty to legislate
differently provided it does so in a manner that is consistent with the
Constitution.

13.5 Language rights

13.5.1 Introduction
One of the factors that triggered the Soweto student uprisings in 1976 was
the insistence by the education authorities that Afrikaans and English be the
dual mediums of instruction in black schools in the area. Prior to this
decree, English was the sole medium of instruction. At the time, English
and Afrikaans were the only official languages. The apartheid government
perceived the implementation of Afrikaans as the medium of instruction in
schools as a method of entrenching and extending its dominance. The
perception that the language of the oppressor was being imposed on black
children fuelled the revolt against the apartheid government.
The uprising occurred against the backdrop of the mistreatment of
indigenous languages under apartheid. Such indigenous languages, even
though spoken by millions of people, were not afforded official recognition
in South Africa in the pre-democratic era. The message conveyed by this
non-recognition was that these languages were less important than English
and Afrikaans and had a lower status than the two languages then officially
recognised by the apartheid state.
To affirm the dignity of communities using the various languages and to
signal a decisive break with past thinking in this regard, section 6 of the
Constitution recognises Sepedi, Sesotho, Setswana, siSwati, Tshivenda,
Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu as official
languages of the Republic. Section 6(4) requires all official languages to be
treated equitably and to enjoy parity of esteem. Recognising that some
indigenous languages had been systematically disadvantaged, the
Constitution imposes an obligation on the state to take positive measures to
advance the status of these languages.219 The establishment of the Pan
South African Language Board is one of the initiatives that aims to foster
respect for all languages. The challenge facing those seeking to foster parity
of esteem is to deal with the dominance of English as the international
language of commerce, science, the law and technology.

CRITICAL THINKING

Achieving parity of esteem for languages

The University of KwaZulu-Natal announced in 2013 that it
would become compulsory in 2014 for all first-year
undergraduate students to complete a course in isiZulu.
The language of instruction would remain English.
 Critics of this move have argued that scientists, lawyers,
entrepreneurs, politicians, pilots and many others are
required to have a fluency in English to function and to
succeed at a global level. Although it would be good if
more South Africans learnt to speak other South African
languages, this should not be made compulsory.
However, supporters of the move point to section 6 of
the Constitution which requires that all languages be
treated with parity of esteem. They also note that almost
60% of registered students at the University of KwaZulu-
Natal are first-language isiZulu speakers. They therefore
argue that the move is long overdue.
Consider the language policy at your own university. Do
you think all the dominant regional languages spoken in
the region in which your institution is situated treat
indigenous languages with parity of esteem? If not, how
could this practically be achieved?

Section 30 of the Constitution provides that everyone has the right to use
their language while section 31 protects the right to do so with other
members of that community. As we have noted, sections 30 and 31 are
supported and buttressed by other rights. These rights include the right not
to be unfairly discriminated against on the basis of language in section 9(3)
and the qualified right to be educated in the official language of a person’s
choice in public educational institutions in section 29(2). People cannot
exercise these rights in a manner that unreasonably and unjustifiably limits
the rights of others. A decision by a governing body of an outstanding
school to retain Afrikaans as the sole medium of instruction may adversely
affect the rights of non-Afrikaans speaking learners in the region to an
effective and proper education.220 As in other instances, competing rights
may have to be appropriately balanced.

PAUSE FOR REFLECTION

Balancing language rights with competing rights
In Head of Department: Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another,
the Constitutional Court sketched the context within which
such questions should be considered, pointing out that
apartheid has created a ‘vast discrepancy in access to
public and private resources’.221 It is important always to
keep this context in mind when evaluating the scope and
content of the appropriate rights. The quote below
illustrates how this context and the mutually enforcing and
interdependent rights give rise to specific constitutional
obligations. The Court continued that the ‘fault line of our
past oppression ran along race, class and gender’ and that
the apartheid system ‘authorised a hierarchy of privilege
and disadvantage’.222 It then proceeded to remark:
Unequal access to opportunity prevailed in every domain. Access
to private or public education was no exception. While much
remedial work has been done since the advent of constitutional
democracy, sadly deep social disparities and resultant social
inequity are still with us. It is so that white public schools were
hugely better resourced than black schools. They were lavishly
treated by the apartheid government. It is also true that they served
and were shored up by relatively affluent white communities. On
the other hand, formerly black public schools have been and by
and large remain scantily resourced. They were deliberately funded
stingily by the apartheid government. Also, they served in the main
and were supported by relatively deprived black communities. That
is why perhaps the most abiding and debilitating legacy of our past
is an unequal distribution of skills and competencies acquired
through education. In an unconcealed design, the Constitution
ardently demands that this social unevenness be addressed by a
radical transformation of society as a whole and of public
education in particular. This the Constitution does in a cluster of
warranties. I cite only a handful. Section 1(a) entrenches respect for
human dignity, achievement of equality and freedom. Section 6(1)
read with section 6(2) warrants and widens the span of our official
languages from a partisan pair to include nine indigenous
languages which for long have jostled for space and equal worth.
Sections 9(1) and (2) entitle everyone to formal and substantive
 equality. Section 9(3) precludes and inhibits unfair discrimination
on the grounds of, amongst others, race and language or social
origin. Section 31(1) promises a collective right to enjoy and use
one’s language and culture. And even more importantly,
section 29(1) entrenches the right to basic education and a right to
further education which, through reasonable measures, the state
must make progressively accessible and available to everyone.

… Of course, vital parts of the ‘patrimony of the whole’ are

indigenous languages which, but for the provisions of section 6 of
the Constitution, languished in obscurity and underdevelopment
with the result that at high school level, none of these languages
have acquired their legitimate roles as effective media of
instruction and vehicles for expressing cultural identity.

And that perhaps is the collateral irony of this case. Learners

whose mother tongue is not English but rather one of our
indigenous languages, together with their parents, have made a
choice to be taught in a language other than their mother tongue.
This occurs even though it is now well settled that, especially in the
early years of formal teaching, mother tongue instruction is the
foremost and the most effective medium of imparting education.
Ample literature indicates that in Africa the former colonial
languages have become the dominant medium of teaching.
Professor Kwessi Kwaa Prah describes this as the ‘language of
instruction conundrum in Africa’. However, I need say no more
about this irony because the matter does not arise for
adjudication.223

According to the Oxford Dictionary, language ‘is the method of human

communication either spoken or written consisting of the use of words in a
structured and conventional way’.224 Given the nature of this right, people
can exercise it meaningfully only with other members of that linguistic
group. Language in this context is not restricted to the list of 11 official
languages and protects the rights of individuals generally to use the
language of their choice. The right to use the language of a person’s choice
is integrally related to the right to enjoy a person’s culture and to practise a
person’s religion. The Constitution seeks the dual objective of protecting
the specific rights of the speakers of a language and promoting respect for
diversity. As Sachs J put it:
 Its [the Afrikaans language] protection and development
is therefore the concern not only of its speakers but of
the whole South African nation. In approaching the
future of the Afrikaans language, then, the issue should
not be regarded as simply one of satisfying the self-
centred wishes, legitimate or otherwise, of a particular
group, but as a question of promoting the rich
development of an integral part of the variegated South
African national character. … Stripped of its association
with race and political dominance, cultural diversity
becomes an enriching force which merits constitutional
protection, thereby enabling the specific contribution of
each to become part of the patrimony of the whole.225
In some instances states have prohibited the use of specific languages in
public places. The Turkish Anti-Terror Act 226 made it an offence to use
the Kurdish language in public places.227 Some international instruments,
such as article 7 of the Treaty between the Allied Powers and Poland, affirm
the right of minorities to use their language by providing that ‘no restriction
shall be imposed on the free use by any Polish national of any language in
private intercourse, in commerce, in religion, in the press or in publications
of any kind or at public meetings’.
Laws such as the Turkish Anti-Terror Act would be an infringement of
section 31 of the Constitution. As the South African Bill of Rights is, in
certain circumstances, of horizontal application, this right may be
enforceable against natural or juristic persons. Thus, private schools and
employee organisations that prohibit the use of certain languages are acting
contrary to section 31. There is now a general acceptance that respect for
diversity includes allowing communities actively to pursue their culture,
use their language and practise their religion even if it is different from that
of the majority and provided it is not constitutionally offensive to do so.

13.5.2 The right not to be unfairly discriminated against

on the basis of language
In addition, the right to use and communicate in the language of choice is
protected directly and indirectly in a number of provisions. Section 9(3) of
the Constitution prohibits the state from unfairly discriminating directly or
indirectly against anyone on the various grounds including language.
Section 9(4) of the Constitution extends this prohibition and provides that
no person may unfairly discriminate on any of the prohibited grounds. The
prohibition therefore operates on both a horizontal and vertical level.
As we noted in chapter 10, the Promotion of Equality and Prevention of
Unfair Discrimination Act (PEPUDA) was enacted to give further effect to
these constitutional rights. It defines discrimination as any act or omission
which imposes burdens, obligations and disadvantages or withholds
benefits, opportunities or advantages from any person on one or more of the
prohibited grounds.228 There must be some link or nexus between the
disadvantage suffered and an identified prohibited ground such as language.
Section 6 of the PEPUDA provides that neither the state nor any person
may unfairly discriminate against any person on any of the prohibited
grounds including language. However, what is prohibited is unfair
discrimination and not simply discrimination. Once a person makes out a
prima facie case of discrimination, a presumption of unfairness effectively
arises which the respondent needs to rebut. In determining unfairness, the
court will have regard for the impact of the discrimination on the
complainant, whether it is reasonable and justifiable, and whether the
respondent has taken reasonable steps to address the disadvantage and
accommodate diversity. These issues are discussed more fully under the
right to equality.

13.5.3 The right to receive education in the official

language of choice
The language provisions set out above must be read in conjunction with
section 29(2) of the Constitution. This section protects the right to receive
education in the official language of choice in public institutions where that
education is reasonably practicable. Section 29(2) goes on to provide that:
to ensure the effective access to, and implementation of,
this right, the state must consider all reasonable
 educational alternatives, including single medium
institutions, taking into account
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially
discriminatory laws and practices.
The right of Afrikaans medium public schools to continue to be single
medium schools was one of the most contentious issues in the constitutional
negotiation process. The depth of sentiment felt by some communities
about their language of choice was demonstrated by the protracted legal
battles by some schools to retain Afrikaans as sole medium of
instruction.229 These cases – adjudicated in the context set out above –
pose difficult questions about the accommodation of diversity in the
language field in cases where the dominant language of instruction at a
school may have the effect of excluding pupils who have suffered unfair
discrimination in the past.
In Minister of Education (Western Cape) v Mikro Primary School
Governing Body,230 the Supreme Court of Appeal (SCA) had to consider
the legality of a directive issued by the Department of Education directing
the governing body of an Afrikaans medium school to convert the school to
a parallel medium school. The department wanted the school to admit
learners and provide tuition for them in English. The school, which was
historically an Afrikaans medium school, refused various requests by the
department to convert it to a parallel medium school. The department then
issued the directive.
The Court held that it is the function of the governing body of a public
school to determine the language policy of the school subject to the
Constitution and applicable law.231 In this instance, the governing body
had acted lawfully. If the governing body had acted unreasonably in the
adoption of its language policy, the department could challenge it in terms
of the Promotion of Administrative Justice Act (PAJA).232 Alternatively,
the head of the Department of Education could, in terms of the South
African Schools Act (SASA), replace the governing body if he or she
formed the view that it had ceased to perform the functions allocated to
it.233 The Court held that by not following either of these options and by
instructing the principal to admit learners contrary to the admission and
language policies of the school, the Department of Education had acted
unlawfully.234 According to the Court, the Department did not have the
power to determine the language or admission policy of the school.235 The
directive to the school was seeking to do just that and was therefore
declared unlawful and invalid.236 The school was thus permitted to
continue being a single medium school and allowed to determine its
language preferences.237
Subsequently, the SCA overruled parts of the obiter dictum in Mikro in
Hoërskool Ermelo. The head of the Department of Education took the view
that the governing body was acting unreasonably in not changing the school
from an Afrikaans medium school to a parallel medium school and
disbanded it. He then appointed an interim committee to determine the
language policy of the school. The interim committee decided to change the
language policy to that of a parallel medium school. The school challenged
all these decisions and the SCA had to determine whether the department
had acted legally.
The SCA held that the SASA vests the governance of the school in the
governing body.238 Importantly, the governing body has the authority to
determine the language policy of the school subject to complying with the
Constitution and applicable law.239 The governing body comprising
parents, learners, educators, members of staff and the principal is
representative of the school community and is thus in a position to make an
informed decision on behalf of the school community.240 The SCA held:
Language is a sensitive issue. Great care is taken in the
Act [SASA] to establish a governing body that is
representative of the community served by a school and
to allocate to it the function of determining the language
policy. The Act only authorises the governing body to
determine the language policy of an existing school, and
nobody else. As nobody else is empowered to exercise
that function, it is inconceivable that section 22 was
 intended to give the head of department the power to
withdraw that function, albeit on reasonable grounds,
and appoint somebody else to perform it, without saying
so explicitly.241
The head of the Department of Education could not do indirectly that which
he was prohibited from doing directly. He could not change the language
policy of the school as this power was vested in the governing body. The
SCA held, after interpreting the SASA, that he could not achieve that
objective by disbanding the governing body and by appointing an interim
body to change the policy. The Court thus held that the obiter in Mikro
indicating otherwise was incorrect.242
The Mpumalanga Department of Education then appealed this decision
to the Constitutional Court.243 Hoërskool Ermelo had been in existence for
some 98 years and had a reputation for excellence. The Department
contended that the school had excess capacity and hence its insistence that
it operate as a parallel medium school. In addition, the number of learners
attending the school had steadily diminished over the years. All the English
medium schools in the immediate vicinity of the school were filled to
capacity.
The Constitutional Court took the view that while this was a case about
legality, it was also about whether it was unreasonable for a school to
preserve its Afrikaans-only language policy in the face of dwindling
numbers and greater demand for tuition in English.244 The broader
description of the issue meant that social imperatives to redress past
disadvantages had to be taken into account together with the need to act
lawfully.245 The Court held that one of the broader visions of the
Constitution is that ‘social unevenness be addressed by a radical
transformation of society as a whole and of public education in
particular’.246
The Court, with this in mind, interpreted section 29(2) of the
Constitution. The Court held that the section comprised two parts. The first
part protects the right to receive public education in the language of choice.
However, this right is modified by the requirement that it accrues where
reasonably practicable. What is reasonable will depend on the
circumstances of the particular case. This would include availability of and
accessibility to public schools, their enrolment levels, the medium of
instruction adopted by the governing body, language choices of the parents
and learners, and the curriculum options.247 Further, the Court held that
this aspect of the right means that if a learner already enjoys the right to be
educated in the language of choice, the state has a negative duty not to
diminish the right without adequate justification.248
According to the Court, the second part of section 29(2) refers to the
manner in which the state must ensure access to the right to be taught in the
language of choice. In deciding on the preferred option, whether it be a
single medium school, parallel or dual medium school, the ‘state must take
into account what is fair, feasible, and satisfies the need to remedy the
results of past racially discriminatory laws and practices’.249 The main
purpose of the SASA was to create a system that would redress past
injustices in the provision of education and provide education of a
progressively high quality to learners. According to the Court, the SASA
devolved to the governing body the power to determine the language of
instruction of the school.250 However, the exercise of this power must be in
accordance with the Constitution. The Court interpreted this to mean that
the policy adopted must fit with the ethos of the Constitution.251 The
Constitution requires the language policy to assist in making education
progressively available to everyone, to take into account what is fair and
practicable, and to enhance historical redress. Thus, the school must have
regard to making education accessible to all in the area and cannot restrict
its consideration to the interests of the learners attending the school.252
The Constitutional Court took the view that the authority of the head of
the Department of Education to revoke the functions of a governing body
was a broad one and it related to any function conferred on the governing
body by law, including the power to determine the medium of
instruction.253 Thus, the Court affirmed the reasoning in Mikro that the
head of the Department of Education may, on reasonable grounds, withdraw
a school’s language policy.254
 The Court also indicated that in determining whether the head of the
Department of Education has acted reasonably, regard must be had to the
nature of the function, the purpose for which it is revoked in the light of the
best interest of learners, including potential learners, the views of the
governing body, the nature of the power sought to be withdrawn and the
well-being of the school, its learners, parents and educators.255
Importantly, the Court held that section 29(2) of the Constitution imposes a
duty on the state to respect the right to be taught in a language of choice. It
also imposes the additional responsibility on the state of ensuring that there
are adequate school places for all children in the province and that
admission to schools is fair.256 A finding that language policies vest
exclusively in the governing body could frustrate the broader objectives of
the Constitution and the SASA which is to provide an effective education
for all.257
The Court concluded that the Department of Education was entitled to
intervene and revoke the exercise of any function exercised by the
governing body if reasonable grounds exist.258 The Constitutional Court
thus overruled the SCA. However, the Court concluded that legally once a
power is revoked, it vests in the head of the Department of Education and
he or she then needs to exercise that power. In this case, the head of the
Department erred by revoking the power and then transferring it to an
interim committee. He was not permitted to do so and hence the decision of
the interim committee was set aside.259
Section 31 entrenches the right of people belonging to a particular
linguistic community to use their language when interacting with members
of their community. Finally, every accused person has the right to be tried in
a language that he or he understands. If this is not practicable, the accused
has the right to have the proceedings interpreted in that language.

PAUSE FOR REFLECTION

The implications of the expansive interpretation

of section 29(2) by the Constitutional Court
 The issue of single medium schools proved highly
contentious during the constitutional negotiations. The
National Party robustly argued for the right of schools to
determine the medium of instruction to protect the right of
single medium Afrikaans schools to continue to exist. The
ANC and its allies equally forcefully opposed this as they
were concerned that this would permit segregated
education to continue. As a compromise, the negotiating
parties agreed on the somewhat convoluted provisions of
section 29(3).
It can be argued that the expansive interpretation of
section 29(2) by the Constitutional Court in Hoërskool
Ermelo effectively emasculates the right to be educated in
Afrikaans single medium educational institutions. Given
South Africa’s history of racial discrimination and exclusion,
it would be unconscionable if language provisions were
used to exclude black learners from a school and in effect
to deny black learners access to well resourced schools.
The Constitutional Court, alive to these dangers, provided
an expansive interpretation of section 29(2) of the
Constitution in an effort to prevent the section from being
used to exclude black learners from access to well
resourced schools on the basis of language rights.

13.5.4 Languages: section 6 of the Constitution

Section 6(1) provides that there are 11 official languages in the Republic.
These are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga,
Afrikaans, English, isiNdebele, isiXhosa and isiZulu. The Constitution
recognises that many of the indigenous languages were neglected and
historically diminished. There is therefore a need to take practical steps to
elevate their status and enhance their usage.260 Other languages spoken by
minorities in South Africa, such as Hindi and Greek, were not listed as
official languages. They are spoken in other parts of the world and their
survival does not depend on usage and growth in South Africa.
 Section 6(3) allows the national and provincial governments to use any
particular official languages for governance purposes after having regard to
usage, practicality, expense, regional circumstances and preferences of the
population as a whole or in the province concerned. At the very least, the
national government and each provincial government must use two official
languages. All official languages must enjoy parity of esteem and must be
treated equitably.261 The duty to act equitably does not necessitate equal
treatment but requires that the state act even-handedly and fairly towards
the various languages.262 However, the requirement that the state be even-
handed in its treatment of the various languages is subject to the
requirement that the state must take practical measures to elevate the status
and advance the use of indigenous languages which in the past had a
diminished use and status.
The Constitution also provides for the establishment of the Pan South
African Language Board. This Language Board has a constitutional
mandate to promote and create conditions for the development of all official
languages together with the Khoi, Nama, San and sign languages. In
addition, it is required to promote and ensure respect for various other
languages spoken by communities in South Africa.

PAUSE FOR REFLECTION

Should Tamil be one of South Africa’s official

languages?
Although the Constitution officially recognises
11 languages, many more languages are spoken in South
Africa. In a memorable exchange between Mohamed J and
Mr B Naidoo during the hearings in Certification of the
Constitution of the Republic of South Africa, 1996,263 the
issue was whether the drafters of the Constitution had
acted contrary to the constitutional principles by not
recognising Tamil as one of the official languages. The
Constitutional Court rejected this argument.
 Mr Naidoo argued that Tamil, like the indigenous
languages, was discriminated against under apartheid and
should also have been afforded recognition as an official
language. Tamil is a language spoken by a section of the
Indian community and is one of the oldest languages in the
world. Mohamed J responded that unlike the indigenous
languages, Tamil is spoken by millions outside South Africa
and will survive and flourish whatever happens in this
country. This is not the case with the indigenous languages
and hence there is a need to provide the additional
protection of official recognition for them. Provisions in the
Constitution prohibit unfair discrimination against Tamil
speakers and protect their rights to enjoy and use their
language and culture. Their language rights are thus
adequately protected by other provisions of the
Constitution.264
Are you convinced by Mohamed J’s reasoning as to why
it was permissible for Tamil not to be recognised as an
official language given the necessity, from a symbolic
perspective, for previously disadvantaged languages to be
recognised and affirmed?

13.5.5 The Pan South African Language Board

The Pan South African Language Board Act 265 was passed to provide for
the recognition, implementation and furtherance of multiculturalism in
South Africa and to promote the development of previously marginalised
languages. An independent Board with defined statutory powers was
created to realise and achieve the mandate. Some of the objectives of the
Board are to:
• create conditions for the development and the promotion of the equal use
and enjoyment of all the official South African languages
• prevent the use of any language for the purposes of exploitation,
domination or division
• promote multilingualism and translation and interpretation facilities
• foster respect for languages spoken in the Republic
• further the development of the official languages
• promote respect for and the development of other languages used by
communities in South Africa.266
The Board has various functions including:
• making recommendations with regard to any proposed or existing
legislation, practice and policy dealing with language matters
• advising an organ of state on the implementation of any proposed or
existing legislation, policy or practice that relates to language matters
• investigating any complaint alleging a violation of a language right,
language policy and language practice
• initiating studies and research aimed at promoting and creating
conditions for the development and use of the various languages.
Any person acting on his or her own behalf or on behalf of another person
may lodge a complaint about an alleged violation or threatened violation of
a language right with the Board.267 The complaint must be in writing and
must specify details of the violation. The Board is required to render its
assistance free of charge. The Board, on receipt of the written complaint, is
required to investigate the alleged violation of any language right, policy or
practice. The Board has the power to subpoena persons to appear before it
and give evidence and produce relevant documents and records.
If, after investigation, the Board is of the opinion that there is substance
to the complaint, it will endeavour by mediation or conciliation to resolve
the issue or rectify any act or omission. If the Board is unsuccessful in
mediating the matter and it is of the view that there are good reasons to
address the matter, it shall assist the complainant further. It may make a
recommendation to an organ of state against which the complaint is lodged
recommending that financial or other assistance be provided as redress. The
Board may provide the complainant with financial or other assistance to
redress any damage. Alternatively, the Board may provide the complainant
with financial or other assistance to enable him or her to obtain relief from
any other organ of state or a court of law.
At the time of writing, Parliament has not passed the act required by the
Constitution to regulate and monitor the use of official languages by the
national and provincial governments. An application was successfully
brought in the High Court compelling the government to comply with its
constitutional obligations.

SUMMARY

It will always be difficult to accommodate the beliefs and practices of

individuals who belong to different cultures, who have different religious
beliefs and who speak different languages. In a heterogeneous society like
South Africa, this challenge becomes even more pronounced. In this
chapter we look at the various rights that protect these diverse interests and
ask how these interests should be accommodated to prevent the beliefs or
actions of some from harming others in society.
To this end we look at the scope and content of freedom of association
and show how this right is often instrumental in helping to protect other
rights including political rights. We also ask when the right to freedom of
association will be trumped by other rights, including the right not to be
discriminated against. We point out that the right to freedom of religion,
belief and conscience does not only guarantee the right to believe in a God
and to practise those beliefs, but also the right not to believe in any God at
all. We ask when justifiable limits can be placed on the exercise of religious
beliefs and practices, pointing out that some beliefs and practices are so
harmful to others while not sufficiently closely associated with the core
aspects of that religion that these beliefs and practices will not be protected
by the Constitution.
Finally, we engage with the manner in which all associational rights
protect individuals while acknowledging that these rights are often
exercised more effectively in conjunction with others or when individuals
belong to institutions where these rights are exercised collectively.
However, we note that the Constitution does not protect group rights, but
only the rights of individuals who belong to specific cultural, language or
religious or groups.

1 Woolman, S ‘Freedom of association’ in Woolman, S and Bishop, M (eds) (2013)

Constitutional Law of South Africa 2nd ed rev service 5 44.6.
2 MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008
(1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) para 150.
3 Ackermann, L (2012) Human Dignity: Lodestar for Equality in South Africa 109.
4 Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996
(CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996) para 24.
5 Second Certification para 26.
6 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October
2007) para 53.
7 Currie, I and De Waal, J (2013) Bill of Rights Handbook 6th ed 397.
8 Quoted by Woolman (2013) 44.1.
9 The Canadian Supreme Court approved of this analysis in Alberta Union of Provincial
Employees v Alberta (AG) (1987), 28 C.R.R. 305. (SCA).
10 Summers, CW (1964) Freedom of association and compulsory unionism in Sweden and the
United States University of Pennsylvania Law Review 112(5):674–96 at 674 as quoted in
Alberta Union of Provincial Employees v Alberta (AG) (1987), 28 C.R.R. 305. (SCA).
11 Pillay para 150.
12 See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
para 32, for example, where the Constitutional Court held that ‘privacy recognises that we all
have a right to a sphere of private intimacy and autonomy which allows us to establish and
nurture human relationships’.
13 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 37.
14 468 US 609 (1984) 618.
15 See generally Dawood.
16 468 US 609 (1984) 620.
17 Roberts v United States Jaycees 468 US 609 (1984) 620.
18 357 U.S. 449 (1958).
19 NAACP v Alabama 357 U.S. 449 (1958) para 462.
20 Woolman (2013) 44.9.
21 [2002] 1 WLR 448.
22 Royal Society for the Prevention of Cruelty to Animals (RSPCA) v Attorney-General [2002] 1
WLR 448 para 37.
23 515 US 557 (1995).
24 515 US 557 (1995) para 21.
25 Woolman (2013) 44.32.
26 Currie and De Waal (2013) 403.
27 Currie and De Waal (2013) 404.
28 Act 4 of 2000, discussed in detail in Chapter 12.
29 Woolman (2013) 44.35.
30 See Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000
(11) BCLR 1235; [2000] 12 BLLR 1365 (CC) (28 September 2000) para 37 where the
Constitutional Court stated: ‘Prejudice can never justify unfair discrimination.’
31 Currie and De Waal (2013) 404.
32 Currie and De Waal (2013) 404.
33 See McWhinney, E (1957) The German Federal Constitutional Court and the Communist Party
decision Indiana Law Journal 32(3):295–312 at 295.
34 424 U.S. 1 (1976).
35 Buckley v Valeo 424 U.S. 1 (1976) para 17.
36 Buckley v Valeo 424 U.S. 1 (1976) para 18.
37 (9828/03) [2005] ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C) (20 April 2005).
38 Act 2 of 2000.
39 IDASA para 33.
40 IDASA para 71.
41 IDASA para 71.
42 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 16.
43 Ramakatsa para 16.
44 Ramakatsa para 16.
45 Ramakatsa para 65.
46 Ramakatsa para 68.
47 Economic Freedom Fighters Constitution, adopted on 27 July 2013, available at
http://effighters.org.za/documents/constitution/.
48 Case ref no.: GP/2008/0161/L BIOS available at at
http://cdn.bizcommunity.com/f/0902/Katy%20Katopodis%20vs%20%20FBJ%20findings.pdf.
49 Forum for Black Journalists [2009] 2 All SA 499 (SAHRC) 510.
50 Forum for Black Journalists 511.
51 Forum for Black Journalists 512.
52 Forum for Black Journalists 511.
53 Forum for Black Journalists 511.
54 (100/06) [2007] ZASCA 56; [2007] SCA 56 (RSA); [2007] 3 All SA 318 (SCA) (18 May
2007).
55 Midi Television para 9 on page 519 of Forum for Black Journalists.
56 Forum for Black Journalists 520.
57 White, S (1997) Freedom of association and the right to exclude The Journal of Political
Philosophy 5(4):373–91 at 373.
58 White (1997) 380.
59 White (1997) 380.
60 White (1997) 381.
61 Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19;
2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) para 89.
62 Fourie para 89. See also Christian Education South Africa v Minister of Education (CCT4/00)
[2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000) para 36.
63 National Coalition for Gay and Lesbian Equality v Minister of Justice para 38.
64 The survey, conducted during November 2011 to January 2012, was based on interviews with
52 000 men and women from 57 countries in five continents. See Fewer religious people in SA
– Survey available at http://www.news24.com/SouthAfrica/News/Fewer-religious-people-in-
SA-survey-20120810.
65 Statistics South Africa (2001) Census 2001 by province, gender, religion recode (derived) and
population group.
66 Country Profile: South Africa (2007–8) Religious Intelligence.
67 See Farlam, P ‘Freedom of religion, belief and opinion’ in Woolman and Bishop (2013) 41.13.
68 (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000)
para 36.
69 Christian Education South Africa para 36.
70 See generally Dubow, S (1992) Afrikaner nationalism, apartheid and the conceptualization of
race Journal of African History 33(2):209–37.
71 Van der Vyver, JD ‘Religion’ in Joubert, WA (ed) (2009) Law of South Africa 2nd ed Vol
23 197. See also S v Lawrence, S v Negal; S v Solberg (CCT38/96, CCT39/96, CCT40/96)
[1997] ZACC 11; 1997 (10) BCLR 1348; 1997 (4) SA 1176 (6 October 1997) para 149. Van
der Vyver points out that the Publications Act 42 of 1974 ‘seemingly subject[ed] the entire
censorship system to the dictates of Christian morality’.
72 Lawrence para 149.
73 Lawrence para 151. See also, generally, Sinclair, J (1996) The Law of Marriage volume 1 164–
5.
74 Seedat’s Executors v The Master (Natal) 1917 AD 302 at 307 (per Innes CJ). See also Ismail v
Ismail 1983 (1) SA 1006 (A) 1026; Kerr, AJ (1984) Back to the problems of a hundred or more
years ago: Public policy concerning contracts relating to marriages that are potentially or
actually polygamous South African Law Journal 101(3):445–56 at 445.
75 Fourie para 89.
76 Fourie para 89.
77 Fourie para 90.
78 Fourie para 90.
79 Fourie para 90.
80 Fourie para 94.
81 Fourie para 94.
82 Fourie para 90.
83 Fourie para 90.
84 Fourie para 94.
85 Fourie para 96.
86 Fourie para 94.
87 Fourie para 108.
88 Act 17 of 2006.
89 (CCT38/96, CCT39/96, CCT40/96) [1997] ZACC 11; 1997 (10) BCLR 1348; 1997 (4) SA
1176 (6 October 1997).
90 Lawrence para 119.
91 Everson v Board of Education of the Township of Ewing [1947] USSC 44; 330 US 1, 15–6
(1947) para 11.
92 Lawrence para 100.
93 Lawrence para 118.
94 Lawrence para 101.
95 Lawrence para 92.
96 Lawrence para 92.
97 Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1;
2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) para 38, where Ngcobo stated that:
The Court has on two occasions [in Lawrence and Christian Education] considered
the right to freedom of religion. On each occasion, it is accepted that the right to
freedom of religion at least comprehends: (a) the right to entertain the religious
beliefs that one chooses to entertain; (b) the right to announce one’s religious beliefs
publicly and without fear of reprisals; and (c) the right to manifest such beliefs by
worship and practice, teaching and dissemination. Implicit in the right to freedom
of religion is the ‘absence of coercion or restraint’. Thus freedom of religion may be
impaired by measures that force people to act or refrain from acting in a manner
contrary to their religious beliefs.
See also Christian Education para 18.
98 Prince para 38.
99 Lawrence para 120, quoting from the US Supreme Court judgment of Engel v Vitale: [1962]
USSC 116; 370 US 421 (1962) 431.
100 Lawrence para 102.
101 Lawrence para 122.
102 Lawrence para 121.
103 Lawrence paras 121–2.
104 Lawrence para 122.
105 Lawrence para 123.
106 Lawrence para 123.
107 Lawrence para 123.
108 Lawrence para 179.
109 Act 27 of 1989.
110 Lawrence para 131.
111 Lawrence para 75.
112 Lawrence para 148.
113 Lawrence para 148.
114 Lawrence para 152.
115 Lawrence para 152.
116 Lawrence para 173.
117 Lawrence paras 118–25.
118 Lawrence para 179.
119 Freeman, GC (1983) The misguided search for the constitutional definition of religion
Georgetown Law Journal 71(6):1519–66 quoted in Stone, GR (ed) (1996) Constitutional Law
3rd ed 1546.
120 Lyng v Northwest Indian Cemetery 485 US 439 para 457.
121 (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002).
Although Ngcobo J dissented, these remarks are not inconsistent with the reasoning of the
majority.
122 Act 140 of 1992.
123 Act 101 of 1965.
124 Prince para 42. See also Taylor v Kurstag NO and Others 2005 (1) SA 362 (W); 2005 (7)
BCLR 705 (W); [2004] 4 All SA 317 (W).
125 Sweden recognises new file-sharing religion Kopimism (2012, 5 January) available at
http://www.bbc.co.uk/news/technology-16424659.
126 See generally Bilchitz, D (2011) Should religious organisations be entitled to discriminate?
South African Journal on Human Rights 27(2):219–48; Lenta, P (2012) The right of religious
associations to discriminate South African Journal on Human Rights 28(2):231–57; Woolman,
S (2012) Seek justice elsewhere: An egalitarian pluralist’s reply to David Bilchitz on the
distinction between differentiation and domination South African Journal on Human Rights
28(2):273–95.
127 (26926/05) [2008] ZAEQC 1; (2009) 30 ILJ 868 (EqC) (27 August 2008).
128 Bilchitz (2011) 221.
129 Pillay para 73.
130 Christian Education para 35.
131 Act 84 of 1996.
132 Christian Education para 35.
133 Christian Education para 37.
134 Christian Education para 19.
135 Christian Education para 23.
136 Christian Education para 27.
137 Christian Education para 51.
138 Christian Education para 51.
139 Christian Education para 51.
140 Christian Education para 51.
141 Prince para 135.
142 Prince para 129.
143 Prince para 129.
144 Prince para 130.
145 Prince para 130.
146 Prince para 83.
147 Prince para 77.
148 This example is based loosely on the facts in Multani v Commission Scolaire Marguerite –
Bourgeoys [2006] 1 SCR 256. In this case, the Canadian Supreme Court struck down a school
board’s decision that prohibited a Sikh child from wearing a kirpan to school on the grounds
that it infringed the right to freedom of religion guaranteed in section 2(a) of the Canadian
Charter of Rights and Freedoms.
149 Torcaso v Watkins 367 U.S. 488.
150 Torcaso v Watkins 367 U.S. 488 para 489.
151 Lawrence para 148.
152 Wittmann v Deutscher Schulverein 1998 (4) SA 423 (T).
153 Lawrence para 103.
154 Quoted by Farlam (2013) 41.51.
155 See the earlier discussion in this chapter on the issue of coercion versus even-handedness.
156 Currie and De Waal (2013) 330.
157 1998 (4) SA 423 (T) para 449.
158 Act 25 of 1961.
159 1983 (1) SA 1006 (A).
160 Farlam (2013) 41.54.
161 Fourie para 94.
162 Fourie para 96.
163 Fourie para 98.
164 Act 120 of 1998.
165 Gumede (born Shange) v President of Republic of South Africa and Others (CCT 50/08) [2008]
ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008) para 16. See
also Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415
(CC); 2013 (8) BCLR 918 (CC) (30 May 2013) para 26.
166 Gumede para 21 and Mayelane para 26.
167 S 1.
168 Mayelane para 70.
169 Christian Education para 24.
170 S 6(4) of the Constitution.
171 Christian Education para 23.
172 Currie and De Waal (2013) 626–7.
173 Currie and De Waal (2013) 627.
174 South African Human Rights Commission (2006) The Exclusionary Policies of Voluntary
Associates: Constitutional Considerations.
175 South African Human Rights Commission (2006) 15.
176 Adopted by the General Assembly of the UN, Resolution 2200(xxi) of 16 December 1966.
177 Adopted by the Organisation of African Unity at the 18th Conference of the Heads of State and
Government on 27 June 1981, Nairobi, Kenya. The treaty entered into force on 21 October
1986.
178 In Amnesty International and Others v. Sudan, African Commission on Human and Peoples’
Rights, Comm. No. 48/90, 50/91, 52/91, 89/93 (1999) para 82, the Commission appears to be
advocating that restrictions on the freedom of association must be proportionate and
appropriate to the objectives of the law.
179 Adopted by General Assembly Resolution 47/135 of 18 December 1992.
180 S 5 of the Commission for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities Act 19 of 2002.
181 S 181 of the Constitution.
182 Second Certification para 24.
183 Christian Education para 23.
184 Mandla and Another v Dowell Lee and Another [1983] 1 All ER 1062 (HL).
185 Pillay para 48.
186 Pillay para 49.
187 Pillay para 50.
188 See Kleinfontein raises old race questions (2013, 31 May) available at
http://www.iol.co.za/news/politics/kleinfontein-raises-old-race-questions-1.1525543
189 Christian Education para 26.
190 Lovelace v Canada CCPR/C/13/D/24/1977, United Nations International Covenant on Civil
and Political Rights Communications No 24/1977, 30 July 1981.
191 2005 (1) SA 362 (W); 2005 (7) BCLR 705 (W); [2004] 4 All SA 317 (W).
192 The edict is referred to as Cherem in Jewish law.
193 Taylor v Kurtstag para 58.
194 Taylor v Kurtstag para 23.
195 Taylor v Kurtstag para 26.
196 Taylor v Kurtstag para 58.
197 Taylor v Kurtstag para 58.
198 Taylor v Kurtstag para 58.
199 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October
2004).
200 Act 38 of 1927.
201 Bhe para 43.
202 Bhe para 44.
203 Bhe para 76.
204 Bhe para 80.
205 Bhe para 15.
206 Bhe para 81.
207 Bhe para 91.
208 Bhe para 92.
209 Bhe para 115.
210 Bhe para 116.
211 Act 81 of 1987.
212 Bhe para 117.
213 (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December
2008).
214 Act 16 of 1985.
215 Proclamation R151 of 1987.
216 Gumede para 10.
217 Gumede para 13.
218 Gumede para 14.
219 S 6(2) of the Constitution.
220 See Head of Department : Mpumalanga Department of Education and Another v Hoërskool
Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR
177 (CC) (14 October 2009).
221 (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (14 October
2009) para 45.
222 Hoërskool Ermelo (CC) para 45.
223 Hoërskool Ermelo (CC) paras 45–9.
224 Online Oxford English Dictionary available at http://www.oxford
dictionaries.com/definition/english/language.
225 Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 (CCT39/95)
[1996] ZACC 4; 1996 (4) BCLR 537; 1996 (3) SA 165 (4 April 1996) para 49.
226 Act 3713 of 1991.
227 Example quoted in Woolman, S ‘Community rights: Language, culture and religion’ in
Woolman and Bishop (2013) 58.44.
228 S 1 of the PEPUDA.
229 See Governing Body of the Rivonia Primary School and Another v MEC for Education:
Gauteng Province and Others (11/08340) [2011] ZAGPJHC 182; [2012] 1 All SA 576 (GSJ);
2012 (5) BCLR 537 (GSJ) (7 December 2011); Governing Body of the Rivonia Primary School
and Another v MEC for Education: Gauteng Province and Others (161/12) [2012] ZASCA
194; 2013 (1) SA 632 (SCA); [2013] 1 All SA 633 (SCA) (30 November 2012); Hoërskool
Ermelo (CC) and Minister of Education (Western Cape) v Mikro Primary School Governing
Body (140/2005) [2005] ZASCA 66; [2005] 3 All SA 436 (SCA) (27 June 2005).
230 (140/2005) [2005] ZASCA 66; [2005] 3 All SA 436 (SCA) (27 June 2005).
231 Mikro Primary School paras 29 and 32.
232 Act 3 of 2000. See Mikro Primary School para 36.
233 Mikro Primary School para 37.
234 Mikro Primary School para 1.
235 Mikro Primary School para 5.
236 Mikro Primary School para 43.
237 Mikro Primary School para 43.
238 Hoërskool Ermelo and Another v Head of Department of Education: Mpumalanga and Others
(219/2008) [2009] ZASCA 22; 2009 (3) SA 422 (SCA); [2009] 3 All SA 386 (SCA) (27 March
2009) para 32.
239 Hoërskool Ermelo (SCA) para 59.
240 Hoërskool Ermelo (SCA) para 74.
241 Hoërskool Ermelo (SCA) para 21.
242 Hoërskool Ermelo (SCA) paras 23–4.
243 Hoërskool Ermelo (CC).
244 Hoërskool Ermelo (CC) para 38.
245 Hoërskool Ermelo (CC) para 40.
246 Hoërskool Ermelo (CC) para 47.
247 Hoërskool Ermelo (CC) para 52.
248 Hoërskool Ermelo (CC) para 40.
249 Hoërskool Ermelo (CC) para 53.
250 Hoërskool Ermelo (CC) para 57.
251 Hoërskool Ermelo (CC) para 59.
252 Hoërskool Ermelo (CC) para 51.
253 Hoërskool Ermelo (CC) para 58.
254 Hoërskool Ermelo (CC) para 72.
255 Hoërskool Ermelo (CC) para 74.
256 Hoërskool Ermelo (CC) para 76.
257 Hoërskool Ermelo (CC) para 77.
258 Hoërskool Ermelo (CC) para 78.
259 Hoërskool Ermelo (CC) para 88.
260 S 6(2) of the Constitution.
261 S 6(4) of the Constitution.
262 See the comments of O’Regan J when considering the meaning of equitable in the context of
s 15(2) in Lawrence para 122.
263 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996)
264 First Certification para 209.
265 Act 59 of 1995.
266 S 3 of the Pan SA Language Board Act.
267 S 11 of the Pan SA Language Board Act deals with the procedure regarding complaints lodged
with the Board.
Political and process rights

14.1 The right to freedom of expression

14.1.1 Introduction
14.1.2 Scope and ambit of the right to freedom of expression
14.1.3.1 Introduction
14.1.3.2 The role of the press
14.1.3.3 Access to and broadcasting of court proceedings
14.1.3.4 Access to divorce proceedings
14.1.3.5 Prior restraints
14.1.3.6 The regulation of broadcasting
14.1.3 Freedom of the press and other media
14.1.4 Hate speech
14.1.4.1 Introduction
14.1.4.2 The scope and extent of hate speech
14.2 The rights to freedom of assembly, demonstration, picket
and petition
14.2.1 Introduction
14.2.2 Scope and ambit of the right to assembly
14.2.3 Distinguishing between assemblies, demonstrations,
pickets and petitions
14.2.3.1 Assemblies and demonstrations
14.2.3.2 Pickets
 14.2.3.3 Petitions
14.2.4 The Regulation of Gatherings Act 205 of 1993
14.2.5 Liability for damage caused during a gathering
14.3 Political rights
14.3.1 Introduction
14.3.2 The right to make political choices and the role of
political parties
14.3.2.1 Introduction
14.3.2.2 The regulation of political parties
14.3.3 State funding of political parties
14.3.4 The right to free, fair and regular elections
14.3.5 The right to vote
14.3.5.1 Introduction
14.3.5.2 Regulating the right to vote
14.3.5.3 Exclusions from the right to vote
14.3.5.3.1 Introduction
14.3.5.3.2 Prisoners
14.3.5.3.3 Citizens working abroad
14.3.6 The right to stand for and hold office
Summary

14.1 The right to freedom of expression

14.1.1 Introduction
In the pre-democratic era, the apartheid state enforced severe forms of
censorship to limit the range of political speech as well as the range of
artistic expression allowed in the country. It was a criminal offence to quote
the words of former President Nelson Mandela or any other member of the
banned liberation movements. The Film and Publications Board also
regularly banned movies and books because of their political or sexual
content. Banning made it a criminal offence to possess, read or watch these
products of artistic expression. During the various states of emergency
which were in place for long periods in the 1980s, the ability of newspapers
to report on the actions of the police and the military were severely limited
by law.
Thus, in this pre-Internet era, the dark pall of censorship hung over South
Africa. These restrictions did not only constitute a denial of democracy.
They also exacerbated the impact of the systemic violations of other
fundamental human rights in South Africa.1

PAUSE FOR REFLECTION

Black Wednesday
On 12 September 1977, Steve Bantu Biko – who espoused
the idea of black consciousness – died at the hands of the
apartheid police while in detention. Biko’s funeral was
attended by about 20 000 people. Partly in response to
these events, on the morning of 19 October 1977, scores
of Black Consciousness activists were arrested and
detained under section 10 of the Internal Security Act.2
In addition to the scores of people detained, about 18
organisations were banned and three newspapers – The
World, Weekend World and Pro Veritate – were also
‘banned’. Journalists were detained, including Mr Percy
Qoboza, then editor of The World, as well as a former
editor of the Sowetan, Mr Aggrey Klaaste. The Chairman of
the Committee of Ten, Dr Nthato Motlana, and some
executive committee members of the Teachers’ Action
Committee were also detained.
This day came to be known as Black Wednesday. In
South Africa today, 19 October is still commemorated with
the aim of celebrating media freedom and to protest
against real or perceived threats to the freedom of the
media.
Censorship is incompatible with South Africa’s present commitment to a
society based on a ‘constitutionally protected culture of openness and
democracy and universal human rights for South Africans of all ages,
classes and colours’.3 To prevent a recurrence of censorship, section 16 of
the Constitution explicitly guarantees the right to freedom of expression for
everyone. Section 16(1) states that this right includes:
• freedom of the press and other media
• freedom to receive or impart information or ideas
• freedom of artistic creativity
• academic freedom and freedom of scientific research.
However, section 16 does not protect all forms of expression. Section 16(2)
lists several forms of speech explicitly excluded from the protections
contained in section 16(1). Thus, propaganda for war, incitement of
imminent violence and advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to cause harm are not
constitutionally protected speech. Section 16(2) therefore ‘defines the
boundaries beyond which the right to freedom of expression does not
extend’, representing an ‘acknowledgment that certain expression does not
deserve constitutional protection because, among other things, it has the
potential to impinge adversely on the dignity of others and cause harm’.4
The right to freedom of expression is one of a ‘web of mutually
supporting rights’ in the Constitution.5 It is closely related to freedom of
religion, belief and opinion, the right to dignity, the right to freedom of
association, the right to vote and to stand for public office, and the right to
assembly. The Constitutional Court has considered the purpose behind the
right to freedom of expression in a number of cases.6 At the heart of the
guarantee of freedom of expression is the recognition of the importance,
‘both for a democratic society and for individuals personally, of the ability
to form and express opinions, whether individually or collectively, even
where those views are controversial’.7
Freedom of expression is therefore important for two reasons. First,
freedom of expression contributes to the goal of establishing a democratic
society. Second, freedom of expression constitutes an important aspect of
what it is to be human – it empowers individuals, bestows a certain agency
on us, and helps us to make informed and hopefully wise life choices and to
decide for ourselves who we are and how we want to live our lives.
O’Regan J referred to these two goals in her judgment in South African
National Defence Union v Minister of Defence, where she held that:
[f]reedom of expression lies at the heart of democracy. It
is valuable for many reasons, including its instrumental
function as a guarantor of democracy, its implicit
recognition and protection of the moral agency of
individuals in our society and its facilitation of the search
for truth by individuals and society generally. The
Constitution recognizes that individuals in our society
need to be able to hear, form and express opinions and
views freely on a wide range of matters.8
Given South Africa’s oppressive past, it is not surprising that the
Constitutional Court has emphasised the important role freedom of
expression plays in promoting democracy. In S v Mamabolo, for example,
Kriegler J held that:
[h]aving regard to our recent past of thought control,
censorship and enforced conformity to governmental
theories, freedom of expression – the free and open
exchange of ideas – is no less important than it is in the
United States of America. It could actually be contended
with much force that the public interest in the open
market-place of ideas is all the more important to us in
this country because our democracy is not yet firmly
established and must feel its way.9
In the absence of freedom of expression, individuals will not be able to take
part in the democratic process in a free and informed manner. Democracy
only functions well in a society in which it is possible for an individual to
change his or her mind. This is only possible when individuals are free to
report on events without fear, to express their opinions and beliefs, and to
receive such communication from others. This view of freedom of
expression is commonly related to the search for truth, which is said to be
best facilitated in an ‘open market-place of ideas’.10 Where there is a free
competition of ideas, so it is said, the best ideas, or the truth whatever that
may be, will eventually triumph. However, as the Constitutional Court
pointed out, ‘[t]hat obviously presupposes that both the supply and the
demand side of the market will be unfettered’.11 In a deeply unequal
society in which not everyone has equal access to information and in which
the voices of some may be privileged and may carry more weight than
others, it is unclear whether such a free marketplace of ideas can ever exist.

CRITICAL THINKING

Is there truly a free marketplace of ideas?

It is often said that in a society in which freedom of
expression is vigorously protected, the search for the truth
in the free marketplace of ideas will allow the best ideas to
rise to the top and the worst and most dangerous ideas to
be rejected by society. However, consider this: no citizen
has access to all the media sources available in the
country, nor to all the books, films and other forms of
artistic expression. Nor would most citizens be able to
make their voices heard outside their immediate circle of
friends – even in the age of Twitter and other forms of
social media. It can be argued that a person’s level of
education, command of the English language, race, gender
and sexual orientation, and relative wealth partly determine
to what extent this person would have the opportunity to
make his or her voice heard in the public sphere. Even on
talk radio stations, only those people who have access to a
telephone and, in the case of cell phones, to airtime, will be
able to call a phone-in programme. Power, so the
argument goes, is unevenly distributed and even in a
democracy in which free speech is guaranteed, the mass
media in particular contribute to the manufacturing of a
consensus in which the voices of the marginalised are
drowned and the interests of the powerful are promoted.
In their book, Manufacturing Consent: A Propaganda
Model, Herman and Chomsky argue that it is the function
of the mass media to amuse, entertain and inform, ‘and to
inculcate individuals with the values, beliefs, and codes of
behaviour that will integrate them into the institutional
structures of the larger society’.12 To fulfil this role requires
systematic propaganda. They continue:
In countries where the levers of power are in the hands of a state
bureaucracy, the monopolistic control over the media, often
supplemented by official censorship, makes it clear that the media
serve the ends of a dominant elite. It is much more difficult to see a
propaganda system at work where the media are private and formal
censorship is absent. This is especially true where the media
actively compete, periodically attack and expose corporate and
governmental malfeasance, and aggressively portray themselves
as spokesmen for free speech and the general community interest.
What is not evident (and remains undiscussed in the media) is the
limited nature of such critiques, as well as the huge inequality in
command of resources, and its effect both on access to a private
media system and on its behavior and performance. A propaganda
model focuses on this inequality of wealth and power and its
multilevel effects on mass-media interests and choices. It traces
the routes by which money and power are able to filter out the
news fit to print, marginalize dissent, and allow the government and
dominant private interests to get their messages across to the
public. The essential ingredients of our propaganda model, or set
of news ‘filters’, fall under the following headings: (1) the size,
concentrated ownership, owner wealth, and profit orientation of the
dominant mass-media firms; (2) advertising as the primary income
source of the mass media; (3) the reliance of the media on
information provided by government, business, and ‘experts’
funded and approved by these primary sources and agents of
power; (4) ‘flak’ as a means of disciplining the media; and (5)
‘anticommunism’ as a national religion and control mechanism.
These elements interact with and reinforce one another. The raw
material of news must pass through successive filters, leaving only
the cleansed residue fit to print. They fix the premises of discourse
 and interpretation, and the definition of what is newsworthy in the
first place, and they explain the basis and operations of what
amount to propaganda campaigns. The elite domination of the
media and marginalization of dissidents that results from the
operation of these filters occurs so naturally that media news
people, frequently operating with complete integrity and goodwill,
are able to convince themselves that they choose and interpret the
news ‘objectively’ and on the basis of professional news values.
Within the limits of the filter constraints they often are objective;
the constraints are so powerful, and are built into the system in
such a fundamental way, that alternative bases of news choices are
hardly imaginable.13

Freedom of expression is not only of pivotal importance for the healthy

functioning of a democracy. As pointed out above, the Constitutional Court
has also emphasised a second goal of freedom of expression – to safeguard
the moral agency of individuals. Dealing with this aspect of freedom of
expression, the Court held that:
[F]reedom of speech is a sine qua non for every person’s
right to realise his or her full potential as a human being,
free from the imposition of heteronomous power. Viewed
in that light, the right to receive others’ expression has
more than merely instrumental utility, as a predicate for
the addressee’s meaningful exercise of his or her own
rights of free expression. It is also foundational to each
individual’s empowerment to autonomous self-
development.14

PAUSE FOR REFLECTION

Greater latitude for political speech

Although the Constitutional Court has accepted that the
right to freedom of expression serves both democracy-
promoting and human dignity-reinforcing goals, it has
tended to favour political speech over other forms of
 expression, especially at the limitation stage of analysis. In
Khumalo and Others v Holomisa, for example, the Court
held that when it comes to determining the reasonableness
of a publication, ‘greater latitude is usually allowed in
respect of political discussion’.15 In Thint Holdings
(Southern Africa) (Pty) Ltd and Another v National Director
of Public Prosecutions, Zuma v National Director of Public
Prosecutions, the Court held that where its jurisprudence
touches on the status of political information, ‘it tends
towards permitting greater dissemination rather than the
restriction of it’.16

14.1.2 Scope and ambit of the right to freedom of

expression
Unlike the First Amendment of the United States Constitution,17 section 16
does not protect the right to freedom of speech, but rather the right to
freedom of expression. The term ‘expression’ is much broader than the term
‘speech’. It thus includes not only words, but also expressive activities such
as symbolic acts, for example burning a flag, wearing items of clothing, for
example wearing a party-political T-shirt, and physical gestures, for
example raising a fist or gesturing with a finger.
The Constitutional Court confirmed the fact that the term ‘expression’
includes not only words but also expressive activities in its judgment in
Phillips and Another v Director of Public Prosecutions and Others.18 In
this case the Court held that a statutory provision that prohibited any person
from appearing or performing naked or semi-naked at a venue that was
licensed to sell alcohol infringed the right to freedom of expression. This
was because freedom of expression included freedom of artistic creativity
and the freedom to receive and impart information.19 In principle, a work
of art, for example a naked painting of the President of the country, would
also constitute expression and would also be protected by section 16.
Apart from expressive activities, the Constitutional Court has also held
that the right to freedom of expression includes not only information or
ideas that are favourably received or regarded as inoffensive or as a matter
of indifference, but also includes those ideas that offend, shock or
disturb.20 Even false speech is, in principle, protected. However, false
speech may be more easily limited as justification thereof may be more
difficult in terms of the provisions of the limitation clause.21
Although the Constitutional Court has interpreted the term ‘expression’
broadly, it is important to note that the right to freedom of expression does
not encompass every form of expression. This is because section 16(2) of
the Constitution expressly excludes certain forms of expression from the
scope and ambit of the right, namely propaganda for war, incitement of
imminent violence and advocacy of hatred that is based on one or other of
the listed grounds, namely race, ethnicity, gender or religion and that
amounts to ‘incitement to cause harm’. Although the Constitution does not
itself ban these forms of expression, it does not protect these forms of
expression because the ‘pluralism and broadmindedness that is central to an
open and democratic society’ can be undermined by such forms of speech
‘which seriously threatens democratic pluralism itself’.22 Section 16(2)
recognises the fact that some forms of expression have the potential to
impair the exercise and enjoyment of other important rights, such as the
right to dignity, as well as state interests, such as the pursuit of national
unity and reconciliation.23 The Constitution therefore recognises that the
state has a particular interest in regulating this type of expression:
because of the harm it may pose to the constitutionally
mandated objective of building the non-racial and non-
sexist society based on human dignity and the
achievement of equality. There is accordingly no bar to
the enactment of legislation that prohibits such
expression. Any regulation of expression that falls within
the categories enumerated in section 16(2) would not be a
limitation of the right in section 16.24
We will discuss these provisions in more detail below with specific
reference to the question of hate speech.
 While the forms of expression listed in section 16(2) of the Constitution
are not protected by the right to freedom of expression guaranteed in
section 16(1), the Constitutional Court has held that all other forms of
expression are protected. This means that any restrictions that are imposed
by the state, as well as, where appropriate, private institutions, on any form
of expression that falls outside section 16(2) will amount to an infringement
of the right to freedom of expression. It will accordingly have to be justified
in terms of the limitation clause if the limitation was imposed in terms of a
law of general application.
In Laugh It Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International and Another, for example, the
Constitutional Court held that:
[w]e are obliged to delineate the bounds of the
constitutional guarantee of free expression generously.
Section 16 is in two parts: the first subsection sets out
expression protected under the Constitution. It indeed
has an expansive reach which encompasses freedom of
the press and other media, freedom to receive or impart
information or ideas, freedom of artistic creativity,
academic freedom and freedom of scientific research.
The second part contains three categories of expression
which are expressly excluded from constitutional
protection. It follows clearly that unless an expressive act
is excluded by s 16(2) it is protected expression. Plainly,
the right to free expression in our Constitution is neither
paramount over other guaranteed rights nor limitless. As
Kriegler K in S v Mamabolo puts it: ‘With us it is not a
pre-eminent freedom ranking above all others. It is not
even an unqualified right. In appropriate circumstances
authorised by the Constitution itself, a law of general
application may limit freedom of expression.’ (our
emphasis) 25
An important consequence of this approach is that section 16(1) of the
Constitution includes certain forms of expression that are often excluded in
other jurisdictions, such as pornography, child pornography and commercial
speech.26 Although these forms of expression are included in section 16(1),
the Constitutional Court attaches less weight to them and has found in
specific cases that they are easily outweighed by countervailing interests,
such as the rights of women and children. Instead of determining the weight
that should be attached to a particular form of expression at the first stage of
the two-stage limitation analysis, therefore, the Court carries this task out at
the second stage.
This approach is clearly illustrated in the Constitutional Court’s
judgment in De Reuck v Director of Public Prosecutions (Witwatersrand
Local Division) and Others.27 Mr De Reuck, who was a film producer, was
found in possession of child pornography and was charged in the regional
magistrates’ court with contravening section 27(1) of the Film and
Publications Act.28 This section provided that a person would be guilty of
an offence if he or she created, produced, imported or possessed any
publication or film which contains child pornography. Section 1 of the Act
defined child pornography as including any image, real or simulated,
however created, depicting a person who is or who is shown as being under
the age of 18 years, engaged in sexual conduct or a display of genitals
which amounts to sexual exploitation, or participating in, or assisting
another person to engage in sexual conduct which amounts to sexual
exploitation or degradation of children.
The Constitutional Court dismissed an appeal of Mr De Reuck and found
that section 27(1) of the Film and Publications Act was constitutionally
valid. In arriving at this conclusion, the Court explained that it first had to
decide whether section 27(1) of the Act infringed section 16(1) of the
Constitution and if it did, whether that infringement was reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom.29 In so far as the first issue was concerned, the
NDPP argued that section 27(1) of the Act did not infringe the right to
freedom of expression because child pornography, as defined in the Act,
could not be classified as expression, but rather as a form of unprotected
speech. This is because, the NDPP argued further, child pornography does
not serve any of the values that underlie the right, namely truth seeking, free
political activity and self-fulfilment.30
Although child pornography was classified as unprotected speech in
other jurisdictions such as the United States, the Constitutional Court held
that the same approach could not be adopted in South Africa. This is
because in South Africa all forms of expression except for those listed in
section 16(2) are protected by section 16(1). Child pornography, therefore,
did fall into the scope and ambit of the right to freedom of expression. The
constitutional validity of section 27(1) of the Act had to be decided not at
the first stage of the two-stage limitation analysis, but rather at the second
stage, namely the limitation stage.31
After setting out these principles, the Constitutional Court turned to
consider whether section 27(1) of the Film and Publications Act was a
reasonable and justifiable limitation of the right to freedom of expression.
The Constitutional Court found that it was for the following reasons:
• First, the limitation of the right to freedom of expression by prohibiting
the possession of child pornography was not particularly serious. This is
because child pornography is a form of expression that has very little
value, it is found on the periphery of the right and is a form of expression
that is not protected as part of the freedom of expression in many
democratic societies.32
• Second, the purpose of section 27(1) of the Film and Publications Act
was extremely important. This is because it was aimed at curbing child
pornography which not only undermines the dignity of all children, but is
also harmful to those children who are used in its production. In addition,
child pornography can be used to groom children for sex, to reinforce the
belief that sex with children is normal and to fuel the fantasies of
paedophiles before they commit acts of abuse. It is regarded as evil in all
democratic societies.33
• Third, while section 27(1) of the Film and Publications Act did not
create a defence for researchers and documentary film makers who
possess child pornography as ‘raw material’ for their legitimate
academic or documentary projects, section 22 of the Act created a
process in terms of which a person who wishes to possess or otherwise
deal with child pornography could apply to an executive committee of
the Film and Publications Board to do so. This meant that section 27(1)
did not impose a blanket prohibition on the possession of child
pornography and could not, therefore, be described as overbroad.34

CRITICAL THINKING

Can the findings in the De Reuck case be applied

to legislation that limits other forms of
pornographic expression?
In the De Reuck judgment, the Constitutional Court found
that child pornography had little value. Taking into account
the fact that freedom of expression was guaranteed to help
secure democracy and to protect the moral agency of
individuals, there was clearly little or no link between the
production, possession or consumption of child
pornography and the promotion of these goals.
However, it has been argued that there is a clear
distinction between child pornography – which harms
children – and other forms of pornography produced and
consumed by consenting adults. Adult pornography, so it is
argued, can play an important role in protecting the moral
agency of individuals who can be empowered by
pornography to make important life choices about their true
sexual orientation. For example, in the United States
context, Lucas 35 argues in favour of the value of
specifically gay pornography for gay men struggling with
their sexual identities as ‘gay porn can act to liberate as
well as educate a historically closeted segment of society’
and ‘can validate homosexuality and create community. It
can be an outlet, perhaps the only outlet, for one’s desires
– desires that are generally suppressed if not condemned
by society as a whole’.36 It might therefore not be possible
 to apply the findings in the De Reuck case to legislation
that limits other forms of pornographic expression because
the harm, if any, of adult pornography would be far more
difficult to quantify or prove. Also, for some segments of
society at least, it might play an important educative and
liberating role.

14.1.3 Freedom of the press and other media

14.1.3.1 Introduction
Apart from the general right to freedom of expression, section 16(1) of the
Constitution lists certain specific forms of protected expression. These are:
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
Of these four specific forms of protected expression, the right to freedom of
the press and other media has received the most attention from the courts
and commentators. For the purposes of this book, therefore, we are going to
focus on this aspect of the right only.

14.1.3.2 The role of the press

The mere fact that the right to freedom of the press and other media has
been expressly included in section 16(1) of the Constitution confirms the
important role that the press and other media play in a democratic society.
The Constitutional Court has referred to this role in a number of cases.37 In
these cases, the Court has held that the right of every citizen to receive
information and ideas depends largely on the freedom of the press and other
media. The press and other media, therefore, are key agents in ensuring that
this aspect of the right to freedom of expression is respected. Freedom of
the media also plays a pivotal role in securing the enjoyment of other rights.
This is in line with the Constitutional Court’s assertion (discussed above)
that freedom of expression forms part of a web of mutually supporting
rights that underpin democracy.
Apart from ensuring that the right to receive information and ideas is
respected, the Constitutional Court has also held that the press and other
media play a key role in ensuring that government is open, responsive and
accountable to the people. This is because:
[i]t is the function of the press and other media to ferret
out corruption, dishonesty and graft wherever it may
occur and to expose its perpetrators. The press must
reveal dishonest mal- and inept administration. … It
must advance the communication between the governed
and those who govern.38
In light of these responsibilities, it is important to note that the press and
other media are not simply bearers of the right to freedom of expression,
but are also bearers of constitutional obligations with respect to freedom of
expression. In Khumalo, the Constitutional Court summed up the rights and
obligations of the media as follows:
In a democratic society, then, the mass media play a role
of undeniable importance. They bear an obligation to
provide citizens both with information and with a
platform for the exchange of ideas which is crucial to the
development of a democratic culture. As primary agents
of the dissemination of information and ideas, they are,
inevitably, extremely powerful institutions in a
democracy and have a constitutional duty to act with
vigour, courage, integrity and responsibility. The manner
in which the media carry out their constitutional
mandate will have a significant impact on the
development of our democratic society. If the media are
scrupulous and reliable in the performance of their
constitutional obligations, they will invigorate and
strengthen our fledgling democracy. If they vacillate in
the performance of their duties, the constitutional goals
 will be imperilled. The Constitution thus asserts and
protects the media in the performance of their
obligations to the broader society, principally through
the provisions of section 16.39

PAUSE FOR REFLECTION

The impact of the Secrecy Bill on the role of the

press and other media in a democracy
It can be argued that the role of the press and other media
‘to ferret out corruption, dishonesty and graft wherever it
may occur and to expose its perpetrators’ 40 is threatened
by legislative attempts to limit the free flow of information
and to prevent the media from reporting on matters of
public concern. In this regard, the adoption of the
Protection of State Information Bill 41 (‘the Secrecy Bill’) by
Parliament has been heavily criticised by its opponents.
This so-called Secrecy Bill was sent back to Parliament by
President Jacob Zuma in September 2013 to correct
potential unconstitutional aspects of the Bill.
The Secrecy Bill is ostensibly aimed at protecting the
national security of the country by empowering members of
the Cabinet, the various security services, including the
police and the military, and those bodies overseeing the
security services to classify information as confidential,
secret or top secret.42 The Minister of State Security is
further empowered to grant the power to classify
documents to any organ of state or part thereof although
this power cannot be granted to municipalities.43
This means that the Minister of State Security has wide
powers to authorise other bodies – after approval by
Parliament – to classify information. If the Minister (and the
majority party in Parliament) wishes to, he or she could
empower any department of state or administration in the
national or provincial sphere of government, any other
functionary or institution exercising a public power or
performing a public function in terms of any legislation and
any owner of a facility or installation declared as a National
Key Point to classify information.44
Although information can only be classified to protect
‘national security’, the Bill defines national security in a
manner that is indeterminate and open-ended. The Bill
thus states that ‘national security includes’, but is not
limited to, threats against the Republic based on terrorism
and sabotage and acts directed at undermining the
capacity of the Republic to respond to the use of, or the
threat of the use of, force and the carrying out of the
Republic’s responsibilities to any foreign country.45
Because the definition is open-ended, it is conceivable
that an authorised classifier could interpret national
security in a far broader manner than the examples
mentioned in the definition of national security contained in
the Bill. This means that the Secrecy Bill potentially
empowers many people at various levels of government
(and many organs of state) to censor information in the
name of protecting national security. This therefore
potentially imposes drastic limits on the right to freedom of
expression and the right of access to information. It does
so in two interrelated but distinct ways:
• First, when information is classified, anyone who leaks
or holds or publishes the information commits a criminal
offence.46 This means that whistle-blowers in
possession of incriminating evidence of
maladministration, ‘dirty tricks’ by members of the
security forces, evidence of corruption or of criminal
activities will think twice before leaking such information
 to the media for fear of being sent to jail for up to
25 years.47
• Second, journalists and editors will be fearful of
receiving any such information and of publishing it for
fear of being sent to jail for long periods of time. The
potential ‘chilling effect’ of this law is therefore real.
To pass constitutional muster, it will have to be shown that
these restrictions on the right to freedom of expression and
information are justifiable. It will have to be demonstrated
that the law struck the appropriate balance between the
need to protect national security, on the one hand, and the
need to protect the rights of citizens to the free flow of
information, on the other hand. It will also have to be
shown whether less restrictive means could not have been
used to protect national security in an appropriate manner.
Section 8 of the Bill purports to limit the potentially broad
scope of the Bill by stating that classification of state
information is justifiable only when it is ‘necessary to
protect national security’. It states further that classification
may not under any circumstances be used to conceal
corruption or any other unlawful act, to avoid criticism, or to
prevent embarrassment to a person, organisation or organ
of state or agency. The section also includes other
guidelines which, if meticulously and honestly followed by
the classifier, would substantially narrow the scope of the
Bill.
Section 45 of the Bill criminalises the wrongful
classification of information while section 46 further
determines that a ‘head of an organ of state or an official of
such organ of state who wilfully or in a grossly negligent
manner fails to comply with the provisions’ of the Bill could
be sentenced to two years’ imprisonment. These
safeguards would go some way to deter abuse of the Bill,
but only if an independent body existed to investigate and
to prosecute those who wrongfully classify documents to
hide corruption or avoid embarrassment.
Those who defend the constitutionality of the Bill will rely
heavily on section 41 of the Bill to argue that it limits the
rights no more than is necessary. This is so because the
section provides a defence to those charged and
prosecuted for disclosing even wrongly classified or
corruptly classified information in a limited number of
cases. This includes cases where the disclosure of the
information is authorised by other legislation and where the
classified information reveals criminal activity, including any
criminal activity in terms of section 45 of the Bill.
Section 41 indeed provides an important safeguard for
potential whistle-blowers. Whistle-blowers and journalists
who are exceedingly brave (or just plain stupid or reckless
about their own freedom and well-being) may well be
prepared to take their chances in the hope that it could be
shown that the leaked or published classified information in
fact reveals criminal activity.
However, how this defence would work in practice is
unclear. In terms of our Constitution, every person is
presumed to be innocent by a court of law until proven
guilty. It is therefore unclear whether this defence in
section 41 would be available to a whistle-blower or a
journalist who receives or publishes classified information
that reveals criminal activity if those involved in the criminal
activity have not actually been convicted of a crime. How
will a whistle-blower or a journalist be able to convince a
court that the information reveals criminal activity if the
criminal activity has not been successfully prosecuted?
And how will the criminal activity be successfully
prosecuted when the information revealing that criminal
activity remains classified? This defence may therefore
well turn out to be illusory.
The Secrecy Bill also provides for a Review Panel to
review classifications of information but the panel is
 appointed by the majority party in Parliament and is
therefore not independent.48 A person can appeal the
classification of information, but as it is a criminal offence to
be in possession of classified documents, it is unclear how
the person can appeal the classification of documents he
or she is not allowed to know about and that the person is
not allowed to have in his or her possession.49

Although the press and media have an important role to fulfil in a

democracy, this does not mean that the press and other media have a
different and superior status in the Constitution. This is because the right to
a free press and other media is designed to serve the interests that all
citizens have in the free flow of information and not the specific interests of
the press and other media. When the state infringes the right to a free press
and other media, therefore, it infringes the rights of all citizens and not
merely the rights of the press itself.50

14.1.3.3 Access to and broadcasting of court proceedings

Courts often consider matters of public importance. Courts often also
consider matters that are of interest to the public without being matters of
public interest. The extent to which the press and other media may access
and broadcast such court proceedings has therefore become contested. The
courts considered this vexing question in South African Broadcasting
Corporation Ltd v National Director of Public Prosecutions and Others.51
The case dealt with a request by the SABC for permission to broadcast live
on radio and television a high-profile criminal appeal with potential
political consequences being argued before the Supreme Court of Appeal
(SCA). The case dealt with an appeal of Mr Schabir Shaik who had been
convicted on several counts of corruption in respect of payments he had
made to the then Deputy-President of the Republic, Mr Jacob Zuma.
The SABC based its application on the grounds that the live radio and
television broadcasts were necessary to enable it to fulfil its constitutional
and statutory obligations to inform the public and that the broadcasts would
play an important educational role given the intense public interest the case
had generated. In addition, the SABC also argued that the broadcasts would
not disrupt the conduct of the hearing.
A majority of the Constitutional Court dismissed these claims. The Court
explained that while the accused’s right to a fair trial and the SABC’s right
to freedom of expression were obviously important, the key issue in the
case was not about those rights, but rather about the public’s right to be
informed about the manner in which one of the three arms of government,
namely the judiciary, operates.52
The public’s right to be informed about the manner in which the
judiciary operates, the Constitutional Court explained, means that courts
should be open and accessible. This principle of open justice is important
not only because it promotes the public’s right to be informed about the
manner in which the courts operate. It is important also because it can
prevent the courts from abusing their power by, for example, following
unfair procedures. Open justice is, accordingly, an intrinsic part of the right
to a fair trial and should be welcomed by the courts.53
However, despite the demands for open justice (linking the right of
freedom of expression to the right to a fair trial and to the need to safeguard
an independent judiciary), the Constitutional Court explained that it would
not interfere with the manner in which the SCA exercised its discretion
simply because it disagreed with the SCA. Instead, it would only interfere
with the manner in which the SCA exercised its discretion if the SCA had
abused its discretion by failing to act judicially, or by applying the wrong
principles of law, or by misdirecting itself on the material facts.54 The
Court therefore declined to interfere with the decision of the SCA ‘that live
or recorded sound broadcasting should not be allowed unless the Court is
satisfied that justice will not be inhibited’.55 This decision struck a
proportionate balance between the SABC’s right to freedom of expression
and the SCA’s obligation to ensure that appeal proceedings before it are
fair.56
The Court affirmed the notion of open justice in subsequent cases. Thus,
in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services
(Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v
President of the Republic of South Africa and Another, the Constitutional
Court affirmed the constitutional imperative of dispensing justice in the
open.57 It stated further:
This systemic requirement of openness in our society
flows from the very founding values of our Constitution,
which enjoin our society to establish democratic
government under the sway of constitutional supremacy
and the rule of law in order, amongst other things, to
ensure transparency, accountability and responsiveness
in the way courts and all organs of state function. From
the right to open justice flows the media’s right to gain
access to, observe and report on, the administration of
justice and the right to have access to papers and written
arguments which are an integral part of court
proceedings subject to such limitations as may be
warranted on a case-by-case basis in order to ensure a
fair trial.58
However, the Court found that a restriction placed on public access to court
proceedings is not only permissible as an exceptional occurrence 59 as the
cluster of rights that guarantees open justice is not absolute. These rights
may be limited by a law of general application provided the limitation is
reasonable and justifiable: 60
There may be instances where the interests of justice in a
court hearing dictate that oral evidence of a minor or of
certain classes of rape survivors or confidential material
related to police crime investigation methods or to
national security be heard in camera. In each case, the
court will have to weigh the competing rights or interests
carefully with the view to ensuring that the limitation it
places on open justice is properly tailored and
proportionate to the end it seeks to attain. In the end, the
contours of our constitutional rights are shaped by the
 justifiable limitation that the context presents and the
law permits.61

14.1.3.4 Access to divorce proceedings

The Constitutional Court discussed the extent to which the press and other
media may access and report on divorce proceedings in Johncom Media
Investments Limited v M and Others 62 in which the constitutionality of
section 12 of the Divorce Act 63 was attacked. This kind of case presents
difficult issues about the tension between the right to privacy and dignity of
individuals involved in often traumatic divorce proceedings and especially
the need to protect the best interests of the child on the one hand, and the
right to freedom of the press on the other.
To protect the dignity and privacy of divorcing parties and their children,
section 12 provided that no person could publish any information that came
to light during a divorce action except for the names of the parties, the fact
that they were getting divorced and the judgment of the divorce court.
The Constitutional Court found that section 12 did not fall within any of
the exceptions set out in section 16(2) of the Constitution and that the
section therefore infringed on the freedom of the media. The key question
that had to be answered, therefore, was whether the infringement satisfied
the requirements of the limitation clause.64 The requirements of the
limitation clause were not satisfied for two reasons:
• First, section 12 was too broad. This is because it prohibited the
publication of any information that came to light during a divorce action
even if that information did not affect the dignity and privacy of the
divorcing parties and their children and did not, therefore, require
protection. It was also contrary to the principle of open justice.65
• Second, section 12 did not achieve its purpose. This is because even
though it prohibited the publication of any information that came to light
during a divorce action, it did not prohibit the publication of the names
of the divorcing parties and their children. A much more effective
method of protecting the dignity and privacy of the divorcing parties and
their children was simply to prohibit the publication of their identities.66
After finding that section 12 of the Divorce Act was unconstitutional and
invalid, the Constitutional Court turned to consider what would be the most
appropriate remedy. In this respect, the Court held that apart from declaring
section 12 to be invalid, it would be appropriate to issue an order
prohibiting the publication of the identities of divorcing parties and their
children and any information that could reveal their identities.67

14.1.3.5 Prior restraints

Prior restraints refers to cases where a publication is prohibited or stopped
from publishing information or where the law requires the publication to
seek approval from a person or body before it is allowed to publish
information. The Constitutional Court considered the question of when and
to what extent Parliament could impose prior restraints on the publication of
material by the press and other media in Print Media South Africa and
Another v Minister of Home Affairs and Another.68
In this case, the Constitutional Court found that section 16(2)(a) of the
Film and Publications Act was unconstitutional and invalid on the grounds
that it infringed the right to freedom of expression. Section 16(2)(a) of the
Act provided that, except for the publisher of a registered newspaper, any
person who intended to ‘create, produce, publish or advertise’ a publication
‘containing sexual conduct which violates or shows disrespect for the right
to human dignity of any person, degrades a person, or constitutes incitement
to cause harm’ had to submit that publication to the Film and Publications
Board for classification before it was distributed. Depending on the way in
which it was classified by the Film and Publications Board, a publication
containing the sexual conduct referred to in section 16(2)(a) could be
banned, distributed subject to certain restrictions or freely distributed. In
addition, the Act also provided that a publisher who failed to submit a
publication containing the sexual conduct referred to in section 16(2)(a) to
the Film and Publications Board for classification before publishing it,
irrespective of how it would have been classified, committed a criminal
offence and could be sentenced to a fine or imprisonment of up to five years
or both.
In declaring this section invalid, the Constitutional Court explained that
section 16(2)(a) imposed a system of ‘administrative prior consent’ for the
publication of information on sexual conduct.69 The Film and Publications
Act was aimed at achieving important goals: to provide consumers with
advice, to protect children from exposure to harmful or age-inappropriate
material, and to ban child pornography. While banning child pornography
and protecting children from exposure to harmful or age-inappropriate
material were obviously important goals, providing adults with more
complete information about a publication’s content was also important. This
is because it enhanced a consumer’s ability to make informed choices about
what he or she consumed or what he or she exposed others to through his or
her consumption.70
However, in this case, the prior constraint limited the right to freedom of
expression in a severe fashion. This is because the system of ‘administrative
prior consent’ created by the Act transferred control over the decision to
publish material from the person in whom the right to freedom of
expression is vested to an administrative body.71 The problem with this
type of system is that administrative bodies are much more likely to restrict
publications when they have to classify them upfront rather than when they
have to take punitive or restrictive action after publication. In addition, this
type of system often leads to delays which may prevent important
information from reaching the public or which may result in information
being redundant by the time it is published.72
After examining the importance of the purpose of the limitation and the
nature and extent of the limitation, the Constitutional Court turned to
balance all the competing factors. In this respect, the Court held that the
extent of the limitation appeared to outweigh the importance of the purpose
of the limitation. This is because the system of ‘administrative prior
consent’ would inevitably delay or restrict the flow of information that
people were lawfully entitled to receive.73 This would undermine the
autonomy of the individual to formulate an opinion about information
received which would in turn undermine the moral agency of the individual.
The limitation would only satisfy the requirements of the limitation clause,
therefore, if there was no other less restrictive means of achieving the goals
of the Act.74 Unfortunately for the Minister and the Film and Publications
Board, the Constitutional Court went on to conclude, there were other less
restrictive means of achieving the goals of the Act such as applying for an
interdict or voluntarily submitting the publication for classification.75

PAUSE FOR REFLECTION

Applying for an interdict to prevent the

publication of a story
The members of the South African Press Council (which
include almost all the print media in South Africa)
voluntarily subject themselves to a form of independent
self-regulation through the Press Ombudsman. The
Ombudsman aims to provide impartial, expeditious and
cost-effective adjudication to settle disputes between
newspapers and magazines, on the one hand, and
members of the public, on the other, over the editorial
content of publications. The Council has adopted the South
African Press Code to guide journalists in their daily
practice of gathering and distributing news and opinion and
to guide the work of the Ombudsman. Section 2.5 of the
Code states that:
A publication shall seek the views of the subject of critical
reportage in advance of publication; provided that this need not be
done where the publication has reasonable grounds for believing
that by doing so it would be prevented from publishing the report
or where evidence might be destroyed or sources intimidated.
Reasonable time should be afforded the subject for a response. If
the publication is unable to obtain such comment, this shall be
stated in the report.

This provision aims to protect newspapers and magazines

from attempts to muzzle them while protecting the rights of
people on whom the press reports in a critical fashion.
On occasion, courts have granted urgent interdicts
against newspapers that were about to publish news
stories critical of individuals. This occurred after the
newspaper had sought comment from the affected person
 and that person had then approached the court to stop the
publication of the critical story. The granting of such an
interdict is a classic form of prior restraint. However, in the
light of the Constitutional Court judgment in Print Media
South Africa, it will arguably be difficult for an affected party
to convince a court to grant such an interim interdict. The
Press Code nevertheless seeks to protect newspapers
from such forms of prior restraint by waiving the
requirement to seek comment from the subject of critical
reportage in limited circumstances.

14.1.3.6 The regulation of broadcasting

As broadcasting is a particularly powerful form of expression and as there
are limited frequencies available in some areas and in respect of some
forms of broadcasting, control is necessary to ensure that diverse views are
broadcast. Section 192 of the Constitution thus provides that ‘[n]ational
legislation must establish an independent authority to regulate broadcasting
in the public interest, and to ensure fairness and diversity of views broadly
representing South African society’. The independent authority referred to
in section 192 is the Independent Communications Authority of South
Africa (ICASA).76
In addition to the regulatory function of ICASA, the Broadcasting
Complaints Commission of South Africa (BCCSA) is tasked with ensuring
that broadcasting is in accordance with the Broadcasting Code. The BBCSA
can be called on to investigate broadcasts that are not in accordance with
the provisions of the Code.77

14.1.4 Hate speech

14.1.4.1 Introduction
The Constitution is founded on the principles of dignity, equal worth and
freedom, and these principles should be given effect to. For this reason,
certain forms of expression do not deserve constitutional protection since
they have the potential to impugn the dignity of others and to cause harm.78
As we pointed out above, section 16(2) of the Constitution deals with
expression that is specifically excluded from the protection of the right to
freedom of expression. While section 16(2)(a) and (b) are concerned with
‘propaganda for war’ and ‘incitement of imminent violence’, section 16(2)
(c) is concerned with what is commonly referred to as ‘hate speech’. Out of
these three forms of excluded expression, hate speech has received the most
attention from the courts and commentators. For the purposes of this book,
therefore, we are going to focus on this form of excluded expression only.
Hate speech at a social level is said to be prohibited for one or more of
the following four reasons:
1. To prevent disruption to public order and social
peace stemming from retaliation by victims.
2. To prevent psychological harm to targeted groups
that would effectively impair their ability to
positively participate in the community and
contribute to society.
3. To prevent both visible exclusion of minority groups
that would deny them equal opportunities and
benefits of … society and invisibly exclude their
acceptance as equals.
4. To prevent social conflagration and political
disintegration.79

14.1.4.2 The scope and extent of hate speech

The exact scope and content of hate speech is contested, but the
jurisprudence confirms that it would be impossible to judge whether a
specific statement constitutes hate speech without reference to the broader
context within which the statement was made. As we noted above,
section 16(2)(c) excludes certain forms of hate speech from constitutional
protection. The clause excludes advocacy of hatred based on race, ethnicity,
gender and religion that amounts to the incitement to cause harm from the
protection of the right to freedom of expression. The list of grounds is a
closed list which means that other forms of hate speech such as
homophobic and xenophobic speech are not included under section 16(2)
and do not automatically fall outside the protection of the freedom of
expression guarantee contained in section 16(1). Before an expression can
be considered as hate speech, the expression must constitute advocacy of
hatred on one of the listed grounds and the advocacy must constitute the
incitement to cause harm. Therefore, irrespective of how offensive
advocacy of hatred may be, it does not qualify to be classified as hate
speech unless the second element, namely incitement to cause harm, is
present.80
It is important to remember that section 16(2) is definitional in that it
merely defines certain forms of speech to which the protection of the right
to freedom of expression does not extend. The Constitution does not
prohibit any speech. Legislation may be enacted that prohibits the forms of
unprotected speech. A general prohibition on hate speech was enacted in
section 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA).81 The grounds in the PEPUDA are not
confined to the three grounds listed in section 16(2).82 Section 10 (read
with section 12) does indeed place limits on several kinds of speech. This
section provides that:
no person may publish, propagate, advocate or
communicate words based on one or more of the
prohibited grounds, against any person, that could
reasonably be construed to demonstrate a clear intention
to:
(a) be hurtful;
(b) be harmful or incite harm;
(c) promote or propagate hatred.
The prohibition on hate speech in the PEPUDA is more far reaching than
the description of hate speech in section 16(2)(c) of the Constitution. As
the constitutionality of this section has not yet been challenged, we will
assume that the extended prohibition of hate speech in section 10 of the
PEPUDA is constitutionally valid. The prohibition is far reaching as it
relates to words based on all prohibited grounds, not only on the basis of
race, ethnicity, gender and religion as is the case in section 16(2)(c). These
grounds include race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth, or any other similar ground such as HIV
status. It is important to note that speech will not constitute hate speech
merely because it is offensive or because it offends a certain section of the
population. The threshold test is that the speech must be aimed at one of the
defined groups. Offending speech targeting all lawyers or all journalists
would therefore never constitute hate speech because it does not target a
person on the basis of one of the listed or associated grounds.
Once it is determined that the speech targets a person based on one of the
listed or similar grounds, the question will be asked whether the speech
could reasonably be construed to demonstrate a clear intention to be hurtful,
harmful or to propagate hatred. An Equality Court need not find that the
speaker actually had the intention to be hurtful or to incite harm. The
question is whether the words of the speaker could reasonably be construed
thus. The subjective question (the intention of the speaker) must be
determined by using an objective test (what a reasonable person would have
thought).83 To decide this question, we would need to look at who the
speaker is, in what context the words were uttered and, given this context,
how a reasonable person would have interpreted the words. We would
assume that such a reasonable person would be someone who is imbued
with the values of the Constitution and who understands the importance of
freedom of speech and robust debate in a democracy. He or she will not be
hypersensitive and will not assume that the speaker had the intention to be
hurtful or to incite harm merely because the words may have offended the
person targeted. It would not be sufficient to show that members of the
targeted group were hurt by the speech or believed that the speech incited
harm against them. What is required is to determine whether a reasonable
person could have believed that the speaker had the intention to hurt the
targeted group or to incite harm against that group.
In Sonke Gender Justice Network v Malema, Mr Julius Malema was
accused of hate speech in contravention of section 10 of the PEPUDA for
stating the following:
 When a woman didn’t enjoy it, she leaves early in the
morning. Those who had a nice time will wait until the
sun comes out, request breakfast and taxi money. In the
morning that lady requested breakfast and taxi money.
You don’t ask for taxi money from someone who has
raped you.84
The Court in this case held that the quoted words constituted hate speech as
per the definitions found in the framework of the PEPUDA. The Court held
that the utterances could reasonably be construed as hurtful, harmful and
demeaning to women.85 The utterances were made in general terms and
then applied to the complainant in the Zuma rape trial. This judgment has
been criticised for not engaging in a serious manner with the requirement
that a reasonable person needed to have construed Mr Malema as having
the intention to be hurtful to a class of people, namely women:
Given the fact that these – admittedly sexist – statements
were made by Malema in defence of President Zuma
(and in response to a question at an election rally) and
came after Zuma was acquitted on the rape charge, I am
far from convinced that a reasonable person would have
construed his statements as intending to be hurtful to the
rape accused or to women in general. One may well
argue that a reasonable person would have concluded
that Malema was motivated not by hate but by disbelief
about the charges of rape levelled against President
Zuma – a disbelief actually endorsed by the court who
acquitted Zuma of the charge of rape. As the expert
witnesses pointed out, such utterances were gender
insensitive and trivialised rape. It perpetuated male
sexual entitlement and was obviously sexist and would
have upset many South Africans – including the
survivors of rape. However … Malema’s words could
reasonably be construed to be intended to make the point
 that the judgment of the High Court, which acquitted
Zuma’s of rape, was the correct judgment.86
Mr Julius Malema faced another hate speech charge in Afri-Forum and
Another v Malema and Others.87 In this case the Equality Court considered
whether Mr Malema had engaged in hate speech when he sang the
song, ‘Awudubula (i) bhulu … Dubula amabhunu baya raypha’ (translated
as ‘Shoot the Boer/farmer … Shoot the Boers/farmers they are
rapists/robbers’). The Court found that Mr Malema had engaged in hate
speech and ordered that both Mr Malema and the ANC be interdicted and
restrained from singing the song known as Dubula Ibhunu at any public or
private meeting held or conducted by them.88 In coming to this decision,
the Court relied on the SCA judgment in Le Roux and Others v Dey to cast
light on the requirement that the words should reasonably have been
construed as having the intention to be hateful: 89
It may be accepted that the reasonable person must be
contextualised and that one is not concerned with a
purely abstract exercise. One must have regard to the
nature of the audience. In this case the main target was
the school children at the particular school, but it also
included at least teachers.90
The Court thus argued that some South Africans, who would largely, but
not exclusively, be black, would not reasonably construe the song to have
had the intention of being hurtful to whites. However, others, who would
largely, but not exclusively, be white, would indeed do so. The Court stated:
each meaning must be considered and be accepted as a
meaning … . If the words mean different things to
different portions of society then each meaning, for the
reasonable listener in each portion of society, must be
considered as being the appropriate meaning.91
In this way, the judgment avoided dealing with a difficult legal problem,
namely that the song would be viewed differently depending on the
audience.

CRITICAL THINKING

A critique of the Afri-Forum judgment

The judgment in Afri-Forum was criticised for the manner in
which it dealt with race and racial politics in South Africa.
De Vos argued:
Judge Lamont divided South Africa into the majority and a minority
and suggested that minorities (defined as white South Africans or
as white Afrikaners) are therefore in particular need of protection
from words that could be construed as having the intention to be
hurtful to that minority. Hinting that white people might well in the
future be in danger of facing a genocide, Judge Lamont stated that:

It must not however be forgotten that minority groups are

particularly vulnerable. It is precisely the individuals who are
members of such minorities who are vulnerable to
discriminatory treatment and who in a very special sense must
look to the Bill of Rights for protection. The Court has a clear
duty to come to the assistance of such affected people.

Minorities have no legislative or executive powers and are

compelled to approach the Court to protect their rights. They are
particularly at risk due to the expense involved in such
approaches. The fact that they are minorities and experience
such difficulties frequently results in them being driven to
protect their identity by invoking and enforcing within their
group, customs practices and conventions which are believed to
be appropriate. In addition, they are fragile in that they are
readily assumed by the mass and lose their identity. A Court
which hears a matter must, while balancing the rights in
question, take into account in the construction of what hate
speech is the fact that it is directed at a minority.92

This means that religious and sexual minorities, say, might be

entitled to special protection in terms of this Act and that a court
should take note of the sensibilities of such groups when they
judge whether a reasonable homosexual or a reasonable Muslim
would have viewed a specific communication as having the
intention to be hurtful to them as Muslims or as homosexuals.
Almost any cartoon that depicts the prophet Mohammed, say,
 might therefore constitute hate speech. Statements by a pastor that
homosexuals are perverts that will burn in hell would also, most
probably, constitute hate speech if this line of reasoning is
followed. I am also fearful that if I were to call devout Christians
“bigots” because of their views on homosexuality, I might be found
to have had the intention (judged by these religious
fundamentalists) to be hurtful to them and hence that I am guilty of
hate speech.

This rather essentialistic and simplistic division of South Africans

into different race groups could be viewed as problematic. Instead
of dealing with South Africans as South Africans and instead of
demonstrating a blindness to race (as required by opponents of
affirmative action), the court relied on racial assumptions and
stereotypes to justify its finding. One would assume that all the
critics of race-based affirmative action would be quick to condemn
this judgment on the basis that it invokes apartheid era race
categories and assumes that one would have a different reaction to
words depending on one’s race and/or the language that one
speaks. Surely the principled DA supporters who complain about
affirmative action will have to reject this judgment because of its
purported unholy valorisation of race? 93

Finally, it is important to note that the prohibition of hate speech in

section 10(1) of the PEPUDA overlaps with the prohibition of the
publication of information that unfairly discriminates in section 12 (the
proviso to this section also applies to section 10). Section 12 of the
PEPUDA provides that:
[n]o person may:
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,
that could reasonably be construed or reasonably be
understood to demonstrate a clear intention to unfairly
discriminate against any person: Provided that bona fide
engagement in artistic creativity, academic and scientific
inquiry, fair and accurate reporting in the public interest
or publication of any information, advertisement or
 notice in accordance with section 16 of the Constitution,
is not precluded by this section.

14.2 The rights to freedom of assembly,

demonstration, picket and petition

14.2.1 Introduction
One of the most powerful ways in which individuals can express their
views on political and social issues is by coming together and protesting
peacefully. The freedom to assemble, demonstrate, picket and petition
therefore forms an integral part of the democratic rights of citizens in a
democracy. When a large crowd of people assemble in the street to express
their views on issues of the day, this can be viewed as a form of
participatory democracy.
In the apartheid era, rallies and demonstrations protesting against the
policies of the apartheid regime or aimed at popularising the ideas of anti-
apartheid organisations such as the United Democratic Front (UDF),
Azanian People’s Organisation (AZAPO), the African National Congress
(ANC) or the Pan Africanist Congress (PAC) were often banned by the
government. In one of the most famous incidents early in September 1989,
peaceful protest marchers in support of liberation, bearing placards
proclaiming ‘the people shall govern’ were sprayed with purple dye by the
police. A spirited activist seized the initiative and the nozzle from the police
and painted Cape Town purple, while an inspired graffitist put the writing
on the wall: ‘The purple shall govern!’ 94
In post-apartheid South Africa, the right to assemble and demonstrate
cannot legally be curtailed in the same manner. This is because section 17
of the Constitution guarantees the right to freedom of assembly,
demonstration, picket and petition. This section provides that ‘[e]veryone
has the right, peacefully and unarmed, to assemble, to demonstrate, to
picket and to present petitions’.
Democracy entails more than the right to vote in regular free and fair
elections. As we have seen in the first part of this book, democracy also
requires citizens actively to participate in public affairs. For this reason, the
right to freedom of assembly plays an important role in a democratic
society. Assemblies, demonstrations, pickets and petitions allow groups,
whose influence on political parties or the political process would otherwise
be minimal, to raise issues that are important to them, to draw attention to
these issues and to engage with their fellow citizens and representatives
about these issues.
Citizens also use such events to enforce their rights outside the formal
legal process because they can place pressure on the legislature and the
executive to ensure that these bodies do not infringe on the rights of
individuals. Such events can also help civil society groups to build support
for their causes and to mobilise voters in order to ensure more responsive
and accountable government from those who were elected to serve the
people. Often, such activities precede or go hand-in-hand with court
action.95

CRITICAL THINKING

Using political mobilisation with litigation to

achieve human rights
Berger and Kapczynski discuss the manner in which the
Treatment Action Campaign (TAC) used both social
mobilisation and litigation in its struggle to ensure access
by all HIV-positive South Africans to life-saving
antiretroviral drugs. They argue that human rights are not
always best won or defended in courtrooms, but often
require sustained political mobilisation. This political
mobilisation requires the freedom to assemble and to
demonstrate. Without the right to freedom of assembly and
to demonstrate, it would be difficult to mobilise politically or
to ensure that battles won through litigation are translated
into real changes in the lives of people. In their discussion
of the battle to ensure that all HIV-positive pregnant women
have free access to medication that diminishes the risk of
transmitting HIV to their newborn babies, these authors
wrote as follows:
Little has been written about how the case came into being or the
impact it has had on the life options and experiences of people
living with and affected by HIV in South Africa. Consider here three
facts: the TAC case was brought only after four years of sustained
lobbying and organizing efforts demanding PMTCT programs in
South Africa. The suit itself was framed by carefully orchestrated
advocacy work and mass demonstrations that caused dramatic
change in the government’s policy even during the litigation. Years
after the stunning victory in the TAC case, and despite claims by
some that the government ‘quickly implemented the orders of the
Constitutional Court’, reliable estimates indicate that only about
thirty percent of women in South Africa who need medicine to
prevent the transmission of HIV to their children are receiving it.
These facts alone demonstrate that to describe the TAC case in
terms that focus on courts or legal texts alone is to miss the true
story of the case. That story is less about a judgment or a doctrine
than it is about a movement. More specifically, it is about the power
that an organized movement can have if it makes strategic use of
constitutionally entrenched and justiciable human rights, lays the
groundwork necessary to give those abstract guarantees meaning,
and energetically builds broad public support for its cause. TAC did
the political and technical work to make the Constitutional Court’s
judgment seem both legally obvious and morally necessary, and
thereby created a precedent that helped bring real improvements in
access to PMTCT services in South Africa, and that was also likely
central to the establishment of a public sector HIV treatment
program for the country. But the ultimate promise of the case – that
all women in South Africa have access to quality medicines and
services to prevent the transmission of HIV to their children – still
awaits fulfillment. The judgment alone could not guarantee the
result that it declared constitutionally required. For that, it needed a
movement. And unfortunately, the Court very likely overestimated
the work that the movement in question could do to implement the
Court’s judgment. That too is part of the legacy of the TAC case. In
the end, then, the story of the TAC case is less a story about the
power and limits of courts than it is a story about the power and
limits of the Treatment Action Campaign.96
The Constitutional Court highlighted the goals of the right to freedom of
assembly in South African Transport and Allied Workers Union and
Another v Garvas and Others (SATAWU) where it stated that:
The right to freedom of assembly is central to our
constitutional democracy. It exists primarily to give a
voice to the powerless. This includes groups that do not
have political or economic power, and other vulnerable
persons. It provides an outlet for their frustrations. This
right will, in many cases, be the only mechanism
available to them to express their legitimate concerns.
Indeed, it is one of the principal means by which
ordinary people can meaningfully contribute to the
constitutional objective of advancing human rights and
freedoms. This is only too evident from the brutal denial
of this right and all the consequences flowing therefrom
under apartheid. In assessing the nature and importance
of the right, we cannot therefore ignore its foundational
relevance to the exercise and achievement of all other
rights.97
Apart from promoting participation in political processes, the right to
freedom of assembly, demonstration, picket and petition also fulfils a
number of other goals. Perhaps the most important of these is the
development of each individual’s unique personality. This is because our
personalities do not develop in isolation. Instead, they develop in the
context of groups. Assemblies for cultural, educational, religious, sport and
recreational purposes, therefore, may be as important as assemblies for
political purposes.

PAUSE FOR REFLECTION

To what sort of assemblies does the right to

freedom of assembly refer?
 Although the right to freedom of assembly exists primarily
to give voice to the powerless, section 17 itself does not
expressly restrict the scope and ambit of the right to
assemblies that are aimed at promoting political
participation. It may, therefore, also include assemblies that
are aimed at promoting cultural, economic and social
activities such as religious, sports and entertainment
gatherings.
However, Woolman argues that the scope and ambit of
section 17 may plausibly be restricted to those assemblies
that have some connection to the political process. This is
because if the right is defined too widely, it may weaken
our commitment to assembly as a form of political
participation.98 Of course, if we agree with this view, the
difficulty that will arise is how to determine whether a
specific protest has some connection to the political
process. People may wish to assemble to protest against
the Film and Publications Board’s banning of a movie
which they believe contains child pornography. This may at
first not appear to be linked to the political process.
However, if politics is defined broadly, then questions about
whether citizens should be allowed to see works of artistic
merit that depict uncomfortable realities may well form part
of the political process. It is therefore unclear how we
would be able to draw this distinction.

14.2.2 Scope and ambit of the right to assembly

As the words of section 17 indicate, the right to assembly applies only to
those assemblies that are peaceful and unarmed. Assemblies that are not
peaceful or that are armed are thus excluded from the scope and ambit of
section 17. The requirement that a protected assembly must be peaceful and
unarmed thus serves as an internal modifier limiting the scope of the right
itself.
PAUSE FOR REFLECTION

Peaceful Assemblies
Like section 17 of the Constitution, Article 8(1) of the
German Constitution provides that ‘all Germans’ have the
right to ‘assemble peacefully and unarmed without prior
notification or permission’.
In the Brokdorf Demonstration case,99 a number of non-
governmental organisations announced that they were
planning to hold a large demonstration against plans to
build a nuclear power plant in Brokdorf. Following this
announcement, the relevant authorities banned any
demonstrations against the nuclear power plant in an area
covering 210 km2 around the site. The relevant authorities
based their decision on the grounds that they believed that
50 000 people would attend the demonstration and that
some of the demonstrators intended to engage in acts of
violence.
In dealing with this case, the Federal Constitutional
Court discussed the scope and ambit of the right to
assemble and, in particular, the requirements that the right
applies only to those assemblies that are peaceful. The
Court held that an assembly will be classified as non-
peaceful only if acts of physical violence against persons or
property are committed or threatened.100 In addition, the
Court also held that where the organisers and participants
in a demonstration do not plan to engage in acts of
physical violence, that demonstration may not be
prohibited or broken up if a small minority of demonstrators
or counter-demonstrators plan to engage in acts of
violence. In these sorts of cases, the Court went on to hold,
the authorities must act against the violent minority and not
against the demonstration as a whole. The demonstration
as a whole remains protected by Article 8.101
14.2.3 Distinguishing between assemblies,
demonstrations, pickets and petitions

14.2.3.1 Assemblies and demonstrations

The Constitution does not define the word ‘assembly’. It appears, however,
to apply to those situations where people intend to meet together, either in
public or in private, and remain together for some or other collective
purpose. The fact that the participants must intend to meet together
distinguishes a protected assembly from a coincidental gathering of people,
for example at the site of a road accident. The Constitution does not protect
this sort of gathering.102
The Constitution also does not prescribe the purposes of a protected
assembly. It may, therefore, be for a political purpose or for an economic,
social or cultural purpose. In addition, Rautenbach and Malherbe suggest
that it is also not limited to the communication of ideas or the discussion of
matters. This is because the right to assemble is not simply a part of the
right to freedom of expression. The right also applies to assemblies where
no opinions are formed or expressed, such as a concert or soccer match.103
Demonstrations and pickets are manifestations of assemblies and are
usually aimed at expressing support for a particular point of view in public.
The Regulation of Gatherings Act (Gatherings Act) 104 distinguishes
between demonstrations and gatherings. It defines a demonstration as ‘any
demonstration by one or more persons, but not more than 15 persons, for or
against any person, cause, action or failure to take action’.105 It defines a
gathering as ‘any assembly, concourse or procession of more than 15 people
in or on any public road as defined in the Road Traffic Act …, or any other
public place or premises wholly or partly open to the air …’.106 The
Regulation of Gatherings Act thus distinguishes demonstrations from
gatherings on the basis of their size.
The reason for distinguishing between demonstrations and gatherings is
that demonstrations, given their small size, are not perceived to be a threat
to public order while gatherings are. The organisers of a demonstration are
thus not required to provide prior notification of the intent to demonstrate,
while the organisers of a gathering are.107
In light of the fact that size is a somewhat arbitrary basis on which to
define the statutory concept of a demonstration, it is unlikely that this
criterion will be used to define the constitutional concept of a
demonstration.

14.2.3.2 Pickets
Picketing is a common feature in labour disputes. The Labour Relations Act
(LRA) 108 protects the right of trade unions and their members to picket.
Section 69(1) of the LRA, for example, provides that ‘[a] registered trade
union may authorize a picket by its members and supporters for the
purposes of peacefully demonstrating (a) in support of any protected strike;
or (b) in opposition to any lock-out’.
Section 69(2) of the LRA goes on to provide that ‘[d]espite any law
regulating the right to assembly, a picket authorised in terms of subsection
(1), may be held (a) in any place to which the public has access but outside
the premises of an employer; or (b) with the permission of the employer,
inside the employer’s premises’. The permission referred to in this section
may not be unreasonably withheld.109 The sorts of places referred to in
section 69(2) include shopping malls and waterfronts.

PAUSE FOR REFLECTION

Balancing striking workers’ right to picket

against a landowner’s right to the peaceful use
and enjoyment of property
When striking workers picket, they often sing, shout,
ululate, bang instruments and blow whistles. These noises
can interfere with a landowner’s right to use and enjoy his
or her property. A difficult issue which arises in these sorts
of cases is how to balance striking workers’ right to picket
against a landowner’s right to the peaceful use and
enjoyment of his or her property. The KwaZulu-Natal High
Court: Durban considered this issue in Growthpoint
Properties Ltd v South Africa Commercial Catering and
Allied Workers Union (SACCAWU) and Others.110
The facts of this case were as follows. The applicant
owned the La Lucia Shopping Mall in Durban. One of the
tenants in this mall was Dis-Chem Pharmacies (Pty) Ltd.
Towards the end of May 2010, the employees of Dis-Chem
embarked on a strike and, as a part of this strike, they
picketed in the basement parking entrance of the Mall.
While they were picketing, the strikers blew whistles, sang,
shouted and ululated. Unfortunately, these noises disturbed
members of the public and disrupted normal business
activities in the Mall. The applicant then claimed that the
noise amounted to a nuisance and applied to the High
Court for an interdict to prevent the nuisance.
The High Court granted the interdict. In arriving at this
decision, the Court began by stating that the key challenge
it had to address was how to balance the striking workers’
constitutional right to picket against the landowner’s
constitutional right to property, to trade and to a healthy
environment.111 Before turning to this task, however, it
would be helpful to summarise the nature and purpose of
picketing.
In labour law, the High Court explained further, picketing
is commonly understood as an organised effort of people
carrying placards in a public place at or near a business
premises. The act of picketing involves an element of
physical presence which, in turn, incorporates an
expressive component. Its purposes are usually twofold:
first, to convey information about a labour dispute to gain
support for the cause from other workers, clients of the
struck employer or the general public, and second, to put
social and economic pressure on the employer, and often,
by extension, on its suppliers and clients.112
 After summarising the nature and purpose of picketing,
the High Court turned to balance the conflicting
constitutional rights. In this respect, the High Court started
by explaining that like all other rights, the right to picket is
not unlimited and absolute. Inevitably in the nature of
pickets, non-parties to the labour dispute are
inconvenienced and sometimes even prejudiced.113
Although protests and demonstrations are part of the fabric
of everyday life and non-parties to the disputes have to
develop some tolerance to withstand the disruption caused
by picketers, such tolerance has its limits.114
In this case, the High Court explained further, tolerance
levels were exceeded when the applicant and its tenants
could not conduct their business and suffered a loss of
revenue as the public took their business elsewhere. In
addition, the evidence given by experts employed by the
applicant showed that the level of noise was unacceptably
high. It exceeded the legal limit of 85 decibels set by the
regulations governing noise-induced hearing loss. The
noise made by the strikers thus created an unhealthy
environment and prevented the applicant and its tenants
from using their property.115
In light of these findings, the High Court went on to
conclude that the strikers could exercise their rights
reasonably without interfering with the applicant, its tenants
and the general public. The fact that the noise made by the
strikers caused the applicant and its tenants to lose
business was an unacceptable and unjustifiable limitation
on their right to property, to trade and to a healthy
environment.116
The strikers were, therefore, ordered to lower their noise
level, but not to stop demonstrating, picketing, carrying
placards or singing and chanting softly.117
14.2.3.3 Petitions
The right to petition protects the right to make direct submissions to the
relevant person or institution.118 The right to petition in terms of section 17
should be read together with sections 56 and 115 of the Constitution which
provide that the National Assembly (NA) and the provincial legislatures are
obliged to ‘receive petitions, representations or submissions from any
interested persons or institutions’.
To give effect to these rights and obligations, all the provincial
legislatures, with the exception of the Eastern Cape Provincial Legislature,
have enacted Petitions Acts.119 Section 1 of the KwaZulu-Natal Petitions
Act defines a petition as:
a complaint, request, representation or submission
addressed by a petitioner to the Committee, and may
take the form of:
(a) a single petition, which is an individual submission
from a single petitioner concerning a particular
complaint or request;
(b) a collective petition, which is a collection of
signatures from a number of petitioners concerning a
particular complaint or request;
(c) a group petition, made up of individual or group
submissions from a number of petitioners concerning
the same or substantially similar complaints or
requests;
(d) an association petition, which is an individual
submission from an association, or an individual
mandated by an association, concerning a particular
complaint or request.

14.2.4 The Regulation of Gatherings Act 205 of 1993

During the apartheid era a number of repressive laws were enacted to
prohibit assemblies and demonstrations and to suppress dissent. Among the
most notorious of these laws were the Riotous Assemblies Act 120 and the
Internal Security Act.121 In terms of the Internal Security Act, the Minister
issued an annual notice in terms of which all outdoor gatherings were
declared illegal – except gatherings for bona fide religious and sporting
events – unless a magistrate granted permission to hold a gathering.
A constructive attempt to reconcile the rights of assemblers with the
state’s interest in maintaining public order was advanced through the
Regulation of Gatherings Act (Gatherings Act). The Gatherings Act
includes the view of demonstrations as a right. However, the right is subject
to notification to the local authorities and police seven days in advance.122
The Act represents a compromise between the old and the new order. Many
of the provisions are not libertarian in essence and seem to favour authority
rather than the realisation of the right to freedom of assembly. The seven-
day notice period could, in effect, put on ice many passionate pleas.123 A
further factor that may chill the collective efforts of demonstrators is the
imposition of civil liability on the members of the demonstration.124
However, the basic premise underlying the Gatherings Act remains that
everyone has the right to assemble and protest peacefully and that
authorities have a duty to facilitate this through negotiations with organisers
of such an event if necessary.
Given that the right to protest is fundamental to the proper functioning of
a democracy, the Gatherings Act assumes that gatherings and protests will
almost always be allowed and that technicalities will not be used to ban
protests that would make the powers-that-be uncomfortable. Although the
provisions in the Act assume that notification will be given, the absence of
giving notice does not automatically render a gathering illegal. Thus, the
Gatherings Act requires the relevant police officers to try to identify
organisers of protests and gatherings and then to engage with those
organisers even if no notice was given of the protest or gathering by its
organisers.125 The Act further places a legal duty on the responsible officer
to engage with organisers of a gathering or protest to try to reach agreement
about how the gathering or protest should be conducted.126
To ensure the facilitation of peaceful gatherings, the Gatherings Act
allows the responsible officer to impose certain conditions on the gathering
or protest if there are reasonable grounds to do so to minimise traffic
disruptions, to ensure continued access for others to their places of work
and property, to prevent injury to any person and to prevent the destruction
of property.127 When an officer imposes such conditions, he or she is
required by law to give written reasons for this.128 The Gatherings Act
makes it clear that a gathering or protest may only be prohibited in extreme
cases. Section 5 states that:
When credible information on oath is brought to the
attention of a responsible officer that there is a threat
that a proposed gathering will result in serious
disruption of vehicular or pedestrian traffic, injury to
participants in the gathering or other persons, or
extensive damage to property, and that the Police and the
traffic officers in question will not be able to contain this
threat, he shall forthwith meet or, if time does not allow
it, consult with the convener and the authorized member,
if possible, and any other person with whom, he believes,
he should meet or consult, including the representatives
of any police community consultative forum in order to
consider the prohibition of the gathering.
Only after such a meeting would a responsible officer be able to prohibit a
gathering if he or she is convinced on reasonable grounds that no
amendment to the conditions of the gathering would prevent serious
disruptions or extensive damage to property.

CRITICAL THINKING

A balancing act gone awry

The police have a duty to keep the peace. They must also
protect the interests of all parties and must protect the
safety of individuals as well as their property. At the same
time, in doing so, the police cannot infringe on the right of
others to protest peacefully. When a protest takes place
without the necessary notice having been given, the police
 officer in charge cannot automatically prohibit such a
gathering or disperse those who have gathered to take part
in a protest. The individual police officers must exercise a
discretion, guided by the Gatherings Act and informed by
section 17 of the Constitution. In doing so, they must
carefully balance the various interests.
In August 2012 – after several incidents of violence in
the preceding days – the police opened fire and killed
34 mineworkers at Marikana. After this massacre, the
President appointed a Commission of Inquiry to look into
the circumstances that led to this disaster. However, in the
wake of the massacre, various institutions prohibited
gatherings around Marikana as this news report explains:
In the wake of the [Marikana] massacre, activists alleged a
crackdown on dissent, especially in the platinum belt, but certainly
not confined to it. In September, the Rustenburg Local Municipality
prohibited the Wonderkop Community Development Association
from organising a protest against police violence after a councillor,
Paulinah Masutlho, was shot dead, allegedly by the police.

Another protest, to be held by the Marikana Support Campaign

outside the Farlam Commission, was also prohibited. In Makause
on the East Rand of Gauteng, the police thwarted criticism of their
own by blocking attempted protests against police violence.

Then it emerged that before the massacre, the Bafokeng

Landbuyers’ Association had also attempted to hold protests on
mining rights, the demolition of houses, and the Protection of State
Information Bill, but their attempts were repeatedly thwarted by the
Rustenburg Municipality, which banned their protests on what they
claimed to be spurious grounds. They have also claimed that the
Municipality is placing a myriad obstacles in the way of their and
others’ right to protest, to protect powerful mining interests and to
stifle dissent against their practices in the platinum belt.129

Can these prohibitions on gatherings in the wake of the

Marikana massacre be justified?

14.2.5 Liability for damage caused during a gathering

Apart from imposing an obligation on the organisers of a gathering to
provide notice to the local authority and police seven days prior to the
gathering,130 the Gatherings Act also imposes joint and several liability on
the organisers of a demonstration or gathering for riot damage caused by the
participants in the demonstration or gathering.131
Section 11(2) of the Gatherings Act goes on to provide, however, that an
organiser can avoid liability if it can prove:
(a) that it did not permit or connive at the act or
omission which caused the damage in question;
(b) that the act or omission in question did not fall
within the scope of the objectives of the
demonstration or gathering in question and was not
reasonably foreseeable; and
(c) that it took all reasonable steps within its power to
prevent the act or omission in question.
The constitutional validity of these provisions was challenged in SATAWU.
The facts of this case were as follows. SATAWU organised a large
gathering in the centre of Cape Town as part of a strike by its members in
the security industry. In preparation for the gathering, SATAWU complied
with all the procedural requirements of the Gatherings Act. In addition, it
appointed approximately 500 marshals and advised its members to refrain
from unlawful and violent behaviour. It also asked the municipality to clear
the roads of vehicles and to erect barriers along the route.
Despite the precautions carried out by SATAWU, the respondents’ shops
were looted and their vehicles damaged during the gathering. The
respondents then sued SATAWU for damages in terms of section 11(1) of
the Gatherings Act. In response, SATAWU denied that it was liable and
applied for an order declaring section 11(2) of the Act to be unconstitutional
and invalid on the grounds that it was irrational.
SATAWU argued that section 11(2) of the Gatherings Act was irrational
because it required the organisers of a gathering to take all reasonable steps
to prevent the act or omission in question even when that act or omission
was not reasonably foreseeable. Apart from being irrational, SATAWU
argued in the alternative that section 11(2) also limited the right to freedom
of assembly and that this limitation was not reasonable or justifiable.
A majority of the Constitutional Court rejected both these arguments and
found that section 11(2) was constitutionally valid. In arriving at this
decision, the Constitutional Court began by noting that it was obliged – to
the extent that this was possible – to interpret section 11(2) in a manner that
gave it a rational meaning and preserved its validity so that the purpose for
which it was enacted could be realised.132 The Court then remarked that:
Gatherings, by their very nature, do not always lend
themselves to easy management. They call for
extraordinary measures to curb potential harm. The
approach adopted by Parliament appears to be that,
except in the limited circumstances defined [in
section 11(2)], organisations must live with the
consequences of their actions, with the result that harm
triggered by their decision to organise a gathering would
be placed at their doorsteps.133
After making these points, the Constitutional Court then turned to examine
section 11(2). In this respect, the Court began by noting that the purpose of
the section was:
(a) to provide for the statutory liability of organisations
(b
) to afford the organiser a tighter defence by allowing it to rely on the
absence of reasonable foreseeability and the taking of reasonable steps
(c) to place the onus on the organiser to prove this defence instead of
requiring the plaintiff to prove the organiser’s unlawfulness and
negligence.134
There is a interrelationship, the Constitutional Court noted further, between
the steps that an organiser takes on the one hand and what is reasonably
foreseeable on the other. Section 11(2) requires that the organiser take
reasonable steps within its power to prevent the act or omission that is
reasonably foreseeable. The real link between the foreseeability and the
steps taken is that the steps must have been reasonable to prevent what was
foreseeable. If the steps taken at the time of planning the gathering were
indeed reasonable to prevent what was foreseeable, the taking of those
preventative steps would render the act or omission that subsequently
caused the riot damage reasonably unforeseeable.135
It must be emphasised, however, that the Constitutional Court went on to
note:
that organisations are required to be alive to the
possibility of damage and to cater for it from the
beginning of the planning of the protest action until the
end of the protest action. At every stage in the process of
planning, and during the gathering, organisers must
always be satisfied of two things: that an act or omission
causing damage is not reasonably foreseeable and that
reasonable steps are continuously taken to ensure that
the act or omission that becomes reasonably foreseeable
is prevented. This is the only way in which organisers
can create a situation where acts or omissions causing
damage remain unforeseeable. In such a case, the
requirement of taking reasonable steps is not met simply
by guarding against the occurrence of the damage-
causing act or omission. The inquiry whether the steps
taken were sufficient to render the act or omission in
question no longer reasonably foreseeable might be very
exacting. An important qualification is that the steps that
the organisers are required to take must be within their
power.136
Although section 11(2) therefore provided a viable defence to the organisers
of a demonstration or gathering, the majority judgment found that this
nevertheless limited the right to freedom of assembly guaranteed in
section 17 of the Constitution. This is because compliance with the
requirements of section 11(2) of the Gatherings Act significantly increased
the cost of organising protest action. It may also well be that poorly
resourced organisations that wish to organise protest action about
controversial causes that are nonetheless vital to society could be inhibited
from doing so. Both of these factors amounted to a limitation of the right to
assemble and to demonstrate.137
The Court nevertheless found the limitation to be reasonable and
justifiable in terms of the limitation clause set out in section 36 of the
Constitution. This is because, the Constitutional Court found, the limitation
served an important purpose of protecting members of society, including
those who do not have the resources or capability to identify and pursue the
perpetrators of the riot damage for which they seek compensation. When a
gathering imperils the physical integrity, the lives and the sources of
livelihood of the vulnerable, the organisations that are responsible for
setting in motion the events that gave rise to the suffered loss must bear
liability for damages arising therefrom.138

14.3 Political rights

14.3.1 Introduction
Before 1994, the majority of South Africans were prohibited from voting in
elections based solely on their race. The oppressive and undemocratic state
curtailed much of extra-parliamentary political activity. Liberation
movements such as AZAPO, the ANC, the PAC and the South African
Communist Party (SACP) were prohibited from operating in the country.
Police harassed and at times detained, tortured and even killed activists who
belonged to organisations such as the UDF – which was established in 1983
to spearhead resistance against apartheid – and the End Conscription
Campaign (ECC). In short, the majority of South Africans who opposed the
apartheid regime enjoyed little or no political rights.
The drafters of the Constitution therefore included a wide range of
political rights in the Constitution. Section 19(1) of the Constitution thus
states that ‘[e]very citizen is free to make political choices’. This includes
the right:
• to form a political party
• to participate in the activities of, or recruit members for, a political party
• to campaign for a political party or cause.
Section 19(2) states that ‘[e]every citizen has the right to free, fair and
regular elections for any legislative body established in terms of this
Constitution’ while section 19(3) confirms that ‘[e]very adult citizen’ has
the right:
• to vote in elections for any legislative body established in terms of this
Constitution and to do so in secret
• to stand for public office and, if elected, to hold office.
The Constitutional Court has considered the purpose behind the political
rights guaranteed in section 19 of the Constitution in a number of cases.139
In these cases, the Court has held that these rights are important for two
reasons. First, the rights are important because they are aimed at preventing
a recurrence of the wholesale denial of political rights that took place
during the apartheid era. Deputy Chief Justice Moseneke eloquently
explained this in Ramakatsa and Others v Magashule and Others where he
held that:
[d]uring the apartheid order, the majority of people in
our country were denied political rights that were
enjoyed by a minority. The majority of black people
could not form or join political parties of their choice.
Nor could they vote for those who were eligible to be
members of Parliament. Differently put, they were not
only disenfranchised but were also excluded from all
decision-making processes undertaken by the
government of the day, including those affecting them …
The purpose of section 19 is to prevent the wholesale
denial of political rights to citizens of the county from
ever happening again.140
A second reason why these rights are important is that they aim to give
effect to a system of representative democracy. In Ramakatsa, Moseneke
DCJ explained this by affirming that section 19 has to be interpreted against
the background of the Constitution as a whole, especially the role afforded
in the Constitution to political parties:
 In our system of constitutional democracy political
parties occupy the centre stage and play a vital part in
facilitating the exercise of political rights. This fact is
affirmed by section 1 of the Constitution which
proclaims that ‘[u]niversal adult suffrage, a national
common voters roll, regular elections and a multi-party
system of democratic government, to ensure
accountability, responsiveness and openness’ are some of
the values on which our State is founded.141
In contrast to most of the rights set out in the Bill of Rights that attach to
‘every person’, the rights contained in section 19 of the Constitution are
available only to citizens.142 It can therefore be observed that the
Constitution distinguishes between citizens who are the bearers of political
rights and ‘everyone’ else, including, for example, foreign nationals, who
are not entitled to participate in the exercise of political rights. While
foreign nationals enjoy almost all the other rights contained in the Bill of
Rights, only citizens can invoke the political rights set out in section 19.

PAUSE FOR REFLECTION

Does section 19 restrict the political activities of

non-citizens?
Rautenbach and Malherbe argue that the political activities
guaranteed in section 19 of the Constitution should be
restricted to those activities that form a part of the formal
democratic process such as participation in elections and
the appointment and functioning of institutions provided for
in the Constitution and legislation. This is because only
citizens are the bearers of the rights guaranteed in
section 19. If the concept of political activities was
interpreted broadly to include all actions associated with
holding or expressing political views or engaging in political
 activities, then the rights of non-citizens to freedom of
opinion, expression, assembly and association, which are
guaranteed for everyone, would be drastically
restricted.143
However, section 19 itself does not restrict the rights of
non-citizens. It merely reserves the enjoyment of these
rights for citizens. If the legislature or other sections of the
Constitution place restrictions on the rights of non-citizens
to take part in the activities of a political party, such
restrictions would not fall foul of section 19. However, if
such restrictions also limit the rights to freedom of
expression, assembly and association of non-citizens, non-
citizens will be able to invoke the latter rights to challenge
the restricting provisions. A court will then have to decide
whether such restrictions are justifiable or not in terms of
the limitation clause. In other words, it is important to
remember that rights are interdependent and that a
legislative provision (or other action) can infringe on more
than one right at the same time.

14.3.2 The right to make political choices and the role

of political parties

14.3.2.1 Introduction
Political parties lie at the heart of South Africa’s constitutional democracy.
The Constitution does not regulate the internal affairs of political parties.
Nor does it contain extensive provisions on the appropriate constitutional
relationship between political parties and constitutional structures such as
legislatures and executives. Note too that the right to make political choices
goes beyond the involvement of citizens in party politics: the involvement
of some citizens in social movements, citizen activism and other civil
society organs is also pivotal for the proper functioning of a democracy.
The rights to freedom of expression, assembly and association ensure that
these political activities not associated directly with political parties are
adequately protected by the Constitution.
However, section 19(1) of the Constitution, which guarantees for all
citizens the right to form, participate in the activities of and campaign for
political parties, affirms that such participation lies at the heart of the right
to make political choices. Section 19(1) thus primarily guarantees the
freedom to make a choice with regard to a political party and once that
choice has been made, it safeguards a member’s free and fair participation
in the activities of the party concerned.144
These provisions have a number of important consequences. Among
these are the following:
• First, members of a political party have a constitutional right to
participate in the activities of their party.
• Second, this constitutional right can be enforced not only against
external interference, but against interference arising from within the
party itself.145 The constitutions and rules of political parties must,
therefore, be consistent with the Constitution.146
Although the constitutions and rules of political parties must be consistent
with the Constitution, it is important to note that section 19(1) does not
spell out how members of a political party should exercise their right to
participate in the activities of their party. Instead, it is left to political parties
themselves to determine how their members should participate in their
activities. This is because these activities are internal matters of each
political party and they are best placed to determine how members should
participate. The constitutions of political parties are the instruments which
facilitate and regulate participation by members in the activities of a
political party.147

CRITICAL THINKING

Enforcing internal party discipline without

negatively affecting internal party democracy
In 2012, the then President of the ANC Youth League, Mr
Julius Malema, was expelled from the ANC after he was
found guilty of contravening what were then rules 25.5(c)
and (i) of the ANC Constitution. Section 25.5(c) – since
amended – stated that ‘[b]ehavior which brings the
organisation into disrepute or which manifests a flagrant
violation of the moral integrity expected of members and
public representatives or conduct unbecoming that of a
member or public representative’ shall constitute
misconduct by a member of the ANC. Section 25.5(i)
stated that ‘[b]ehaving in such a way as to provoke serious
divisions or a break-down of unity in the organization’
would similarly constitute misconduct. A disciplinary
committee of the ANC relied on these provisions to expel
Mr Malema for expressing his personal views at a press
conference of the ANC Youth League ‘which sought to
portray the ANC government and its leadership under
President [Jacob] Zuma in a negative light in relation to the
African agenda and which had the potential to sow division
and disunity in the ANC, and for expressing his personal
views on Botswana which contravened ANC policy’.148
Assuming that the various disciplinary committees were
properly constituted and that they provided Mr Malema a
fair hearing, the expulsion of Mr Malema would probably be
found to pass constitutional muster. However, Mr Malema
and his allies argued at the time that the action against him
was motivated by political considerations. They also
argued that such actions would have a chilling effect on
robust debate within the internal structures of the ANC.
This case thus provides evidence of the difficult
constitutional and broader ethical issues that arise when a
political party wishes to discipline its members. On the one
hand, no organisation – especially not a political party –
can allow ill-discipline of its members. On the other hand,
where members of a party are disciplined for asking critical
 questions about the leadership of their political party,
internal party democracy may suffer and may even be
extinguished.
Two pertinent issues arise. Would vague and general
disciplinary rules that prohibit members of a political party
from bringing that party into disrepute and of sowing
divisions in that party pass constitutional muster? If not,
how could a political party formulate its disciplinary rules to
ensure that party discipline is enforced without snuffing out
internal debate in the party?

14.3.2.2 The regulation of political parties

As pointed out above, political parties play an important role in South
Africa’s system of representative democracy. However, there are no
significant constitutional or legislative provisions that regulate the internal
affairs of political parties such as the manner in which they select their
candidates for elections or the manner in which they discipline members
who have allegedly breached their rules.149
The legal relationship between a party and its members, therefore, is
largely based on the common law principles that govern voluntary
associations. In terms of the common law, a voluntary association is taken
to have been created by agreement as it is not a body established by statute.
A political party’s constitution together with its rules collectively comprise
the terms of the agreement entered into by its members. It is, however,
regarded as a unique agreement.
Although there are no significant constitutional or legislative provisions
regulating the internal affairs of political parties, the Electoral Act 150 and
the Electoral Commission Act 151 do regulate the manner in which political
parties may participate in elections. These Acts provide, inter alia, that
political parties who wish to contest an election must register,152 submit a
list of candidates 153 and pay a deposit which is forfeited in the event of the
party not securing a seat in the elections. Every political party and every
participating candidate must also subscribe to the code of conduct.154
Finally, it is important to note that the Electoral Commission may not
accept the late submission of candidate lists by parties.155

PAUSE FOR REFLECTION

A generous interpretation of sections 14 and 17

of the Municipal Electoral Act
In African Christian Democratic Party v Electoral
Commission and Others, the Constitutional Court held that
the reason why political parties are required to pay a
deposit before they can contest an election is to ensure
that their participation in the election in question is not
frivolous.156
In this case, the applicant decided to contest the 2006
local government elections in the Cape Town Metro. After
taking this decision, it lodged a notice of intention to
contest the elections together with a list of candidates at
the Electoral Commission’s office in Cape Town.
Unfortunately, it did not pay a deposit at the Commission’s
Cape Town office as required by sections 14 and 17 of the
Local Government: Municipal Electoral Act.157
When the applicant was informed of this fact, it asked
the Electoral Commission to take the deposit from the
surplus funds it had deposited at the Electoral
Commission’s head office in Pretoria. The Electoral
Commission, however, refused to do so and disqualified
the applicant from contesting the elections in Cape Town.
The applicant then applied unsuccessfully to the Electoral
Court for an order overturning the Commission’s decision.
After the Electoral Court dismissed the application, the
applicant appealed to the Constitutional Court. The
Constitutional Court upheld the appeal and found in favour
of the applicant.
 In arriving at this decision, the Constitutional Court
began by noting that even though sections 14 and 17 of
the Municipal Electoral Act specifically stated that the
deposit should be paid at the Electoral Commission’s local
offices and not at its head office, these sections should not
be interpreted in a way that prohibited deposits being paid
at the head office. This is because the central purpose of
sections 14 and 17 was to make sure that political parties
who have notified the Commission that they intend to
contest the election are being serious. There was no
central purpose attached to the precise place where the
deposit was paid.158
In addition, the Constitutional Court explained further,
interpreting sections 14 and 17 of the Municipal Electoral
Act in a manner that allowed the deposits to be paid at the
Electoral Commission’s head office facilitated participation
in the elections rather than exclusion. This interpretation
was also consistent with section 1(d) of the Constitution
which provides that ‘[t]he Republic of South Africa is one
sovereign, democratic state founded on the following
values: Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of
democratic government to ensure accountability,
responsiveness and openness’.159
Apart from the reasons set out above, the Constitutional
Court also held that no other candidates or parties would
be harmed by a generous interpretation of sections 14 and
17 of the Municipal Electoral Act.160

14.3.3 State funding of political parties

Political parties can only operate effectively if they have access to funds.
However, this need for funds is a source of anxiety in many democracies.
Where political parties are reliant on private donors and big corporations for
their funds, this often distorts the policies and programmes of political
parties to the detriment of those voters who cannot influence the policies
and programmes in a similar fashion. Money, so it is said, can corrupt
democratic policies and those with money will often try to do so.
Section 236 of the Constitution therefore states that ‘to enhance multi-party
democracy, national legislation must provide for the funding of political
parties participating in national and provincial legislatures on an equitable
and proportional basis’. The national legislation referred to in this section is
the Public Funding of Represented Political Parties Act.161
This Act establishes a fund which is managed by the Electoral
Commission. Money is allocated from this fund to the parties represented in
the national and provincial legislatures from time to time. The amount each
party is allocated depends on two factors: first, each party’s proportional
number of seats, and second, the principle of equity. The principle of equity
provides that each party must at least receive a fixed minimum amount.
This means larger parties will receive more funds than smaller parties. New
parties entering the political space will receive no funds as they will have
no seats in Parliament. The money allocated to each party must be used for
purposes that are compatible with the functioning of a political party in a
democratic society.

PAUSE FOR REFLECTION

Proportional national funding provides an unfair

advantage to incumbent parties
Lowry suggests that instead of adopting a system of
proportional national funding of political parties it would be
better to adopt an egalitarian model similar to those
employed in the United Kingdom and Canada. In terms of
this approach, spending caps are imposed on political
parties and greater transparency of funding and in
particular private financing is required.162 Where funding
is allocated on the basis of the proportional support the
party received in the previous election, so the argument
 goes, it makes it very difficult for smaller parties to compete
fairly in elections. The more money to which a party has
access, the better it can run an election campaign. The
converse is also true. Thus, the system is often criticised
because it provides an unfair advantage to incumbent
parties.

Apart from the money allocated to political parties represented in the

national and provincial legislatures, each political party is free to raise its
own funds through private donations. Unlike the approach adopted in a
number of other constitutional democracies, however, there is limited
regulation of private funding in South Africa.163
In Institute for Democracy in South Africa and Others v African National
Congress and Others, the High Court held that the Promotion of Access to
Information Act (PAIA) 164 does not impose an obligation on political
parties represented in the national and provincial legislatures to provide
members of the public with information about the private donations they
have received.165 In arriving at this decision, the High Court held that for
the purpose of their private donation records, political parties should not be
classified as public bodies, but rather as private bodies. This meant, the
High Court held further, that the applicant was entitled to be granted access
to the respondents’ private donation records only if it could show that this
information was ‘required for the exercise or protection of any right’.166
Although the applicant argued that the donor records were required for
the exercise or protection of the rights set out in section 19 of the
Constitution, the High Court went on to hold, they did not explain how the
respondent’s donation records would assist them in exercising or protecting
those rights or why, in the absence of those donation records, they would be
unable to exercise them.167
On the face of it, the High Court concluded, section 19(1) prevents any
restrictions from being imposed on a citizen’s right to make political
choices, such as forming a political party, participating in the activities of
and recruiting members for a party, and campaigning for a political cause.
Similarly, the right to ‘free, fair and regular elections’ enshrined in
section 19(2) does not impose a duty on political parties to disclose funding
sources nor does it afford citizens a right to gain access to such records. The
emphasis in section 19(2) lies on the elections and the nature of the
electoral process and not so much on the persons or parties participating in
those elections.168

CRITICAL THINKING

The debate about the disclosure of sources of

campaign funds
Lowry suggests that one way of ensuring public confidence
in elections would be to compel political parties to disclose
the sources of their campaign funds to public scrutiny.169
However, in South Africa there has been little enthusiasm
for this proposal from both the majority party and from
minority parties.
Smaller parties argue that the majority party is
entrenched and attracts large state funding and private
funding as a result. Smaller parties are left to scrounge for
private donations to fund the greater part of their expenses.
Such donations, so the argument goes, may be difficult to
obtain as donors may fear retaliation from the governing
party if it becomes known that they have made donations
to opposition parties.170
In the absence of legislation that compels all political
parties to disclose all sources of their funding, it will be
impossible to hold political parties accountable and to
prevent the powerful and wealthy from attempting to buy
influence by donating money to political parties.

14.3.4 The right to free, fair and regular elections

Apart from the right to make political choices guaranteed in section 19(1)
of the Constitution, section 19(2) provides that ‘[e]very citizen has the right
to free, fair and regular elections for any legislative body established in
terms of this Constitution’.
As the Constitutional Court pointed out in New National Party v
Government of the Republic of South Africa and Others,171 this right to
free and fair elections is closely related to the right to vote. This is because
‘the right to vote is indispensable to, and empty without, the right to free
and fair elections; the latter gives content and meaning to the former’.172
Most rights contained in the Constitution merely require the state not to
interfere with the exercise of the right. By contrast, the right to free, fair and
regular elections imposes positive obligations on the state to ensure that it is
fulfilled.173 For example, a date for elections has to be promulgated, the
secrecy of the ballot ensured and the process of elections must be managed.
The results of an election also have to be declared.174
To ensure that these positive obligations are carried out in a free and fair
manner, the Constitutional Court has held that the power to organise and
manage elections must be vested in an independent institution.175
Sections 181 and 190 of the Constitution read together with the Electoral
Commission Act fulfil this requirement by establishing an independent
Electoral Commission (a so-called Chapter 9 institution) and then
conferring the power to organise and manage elections on this institution.
Together with the other Chapter 9 institutions, section 181(2) of the
Constitution expressly refers to the independence of the Electoral
Commission. Section 181(2) provides that ‘[the Chapter 9 institutions] are
independent, and subject only to the Constitution and the law, and that they
must be impartial and must exercise their powers and perform their
functions without fear, favour or prejudice’.176
In the New National Party case, the Constitutional Court held that the
independence of the Electoral Commission encompasses at least two
aspects: financial independence and administrative independence.
Financial independence means that the Electoral Commission must have
access to funds reasonably required to enable it to carry out its functions.
An important consequence of this principle is that while Parliament has the
authority to set a budget for the Commission, it must consider what is
reasonably required by the Commission and deal with its requests for
funding in a rational manner. In addition, it also means that Parliament
rather than the executive must allocate the funds required by the
Commission.177
Administrative independence means that the Electoral Commission must
have control over those matters directly connected with the functions the
Commission has to carry out. An important consequence of this principle is
that while the executive is obliged to provide the Commission with any
assistance it requires ‘to ensure its independence, impartiality, dignity and
effectiveness’, the executive may not tell the Commission how to conduct
registration, whom to employ, and so on.178
The main functions of the Electoral Commission are set out in
section 190(1) of the Constitution. This section provides as follows:
1. The Electoral Commission must:
(a) manage elections of national, provincial and
municipal legislative bodies in accordance with
national legislation;
(b) ensure that those elections are free and fair; and
(c) declare the results of those elections within a
period that must be prescribed by national
legislation and that is as short as reasonably
possible.
Besides vesting the power to organise and manage elections in an
independent institution, the Constitutional Court has also held that an
election will only be fair if the following two requirements are satisfied:
first, each citizen entitled to do so must not be allowed to vote more than
once in an election, and second, any person who is not entitled to vote
should not be allowed to do so. This means that the regulation of the
exercise of the right to vote is necessary so that any deviations from these
requirements can be eliminated or restricted to ensure the proper
implementation of the right to vote.179
 The duty that rests on the state to realise effectively an individual’s
political rights is aptly demonstrated in the matter of August and Another v
Electoral Commission and Others.180 In this case the Constitutional Court
was required to determine whether the right of prisoners to vote had been
infringed in so far as the Commission had not taken the necessary steps to
ensure that prisoners could register and therefore vote. One of the functions
of the Commission is to compile and maintain a voters roll.181 The
Commission decided primarily for budgetary and administrative
requirements that it would not take any steps to allow prisoners to vote in
the 1999 elections. The Court held that the Commission had a duty to
ensure the registration of these prisoners so as to enable them to exercise
their political rights.182
Note that the freeness and fairness of elections do not depend solely on
the Electoral Commission. Where some political parties are not treated
fairly by the media (including the state media), or where the ability of
political parties to campaign is restricted by the state, the freeness and
fairness of the election will be questioned. Similarly, where state
institutions or the members of powerful political parties are allowed to
intimidate voters, the freeness and fairness of the election would similarly
be compromised. Section 18 of the Electoral Commission Act establishes
an Electoral Court to prevent such abuses from occurring. Section 96 of the
Electoral Act empowers the Electoral Court to enforce the various
provisions in that Act aimed at preventing just such abuses.

14.3.5 The right to vote

14.3.5.1 Introduction
Section 19(3) of the Constitution provides that ‘[e]very adult citizen has the
right: (a) to vote in elections for any legislative body established in terms of
this Constitution and to do so in secret; and (b) to stand for public office
and, if elected, to hold office’.
The Constitutional Court highlighted the significance of the right to vote
(and its intimate relationship with the value of human dignity that
permeates the Bill of Rights) in August. The Court held that ‘[t]he vote of
each and every citizen is a badge of dignity and of personhood. Quite
literally, it says that everybody counts’.183 The right to vote, therefore, is
symbolic of our citizenship and represents a practical manifestation of how
the Constitution recognises and protects the dignity of every citizen. Given
South Africa’s history in which the dignity of black South Africans was
systematically denied by the state – in part by denying black South Africans
the right to vote – this right and its protection is of profound importance for
every citizen. As O’Regan J stated in the New National Party judgment:
The obligation to afford citizens the right to vote in
regular, free and fair elections is important not only
because of the relative youth of our constitutional
democracy but also because of the emphatic denial of
democracy in the past. Many of the injustices of the past
flowed directly from the denial of the right to vote on the
basis of race to the majority of South Africans. The
denial of the right to vote entrenched political power in
the hands of white South Africans.184
Apart from its symbolic role of affirming the dignity of all, the
Constitutional Court held in Richter v The Minister for Home Affairs and
Others that the right to vote is also a crucial working part of our democracy:
Without voters who want to vote, who will take the
trouble to register, and to stand in queues, as millions
patiently and unforgettably did in April 1994, democracy
itself will be imperilled. Each vote strengthens and
invigorates our democracy. In marking their ballots,
citizens remind those elected that their position is based
on the will of the people and will remain subject to that
will. The moment of voting reminds us that both electors
and the elected bear civic responsibilities arising out of
our democratic Constitution and its values.185
To put this differently, voting reminds us that those elected to govern the
country do so by invitation of the voters who lend their vote to a specific
political party for a maximum period of five years. After five years, voters
have a right to re-evaluate this choice. If they are unhappy with how the
political party of their choice has served them, they can decide to lend their
vote to another party again for a limited period of no more than five years.
Section 1 of the Electoral Act defines a voter as a South African citizen
who is 18 years or older and whose name appears on the voters roll. As this
definition indicates, a citizen who is 18 years or older may vote only if his
or her name appears on the voters roll.186
A citizen’s name will appear on the voters roll only if he or she has
registered to vote in terms of section 6 of the Electoral Act. In New
National Party, the Constitutional Court held that the requirement in
section 1 of the Constitution that voting must occur in terms of a common
voters role means that registering to vote is an inherent requirement for the
exercise of the right to vote. The legislation that requires registration and
prevents unregistered voters from voting can therefore not be classified as
an infringement of the right to vote. It is a requirement for exercising the
right not an infringement of it.187

PAUSE FOR REFLECTION

Is the requirement of registration for exercising

the right to vote a limitation on the right to vote?
Rautenbach and Malherbe have criticised the approach
adopted by the Constitutional Court in New National Party.
They argue that the requirement that citizens must register
before they can vote should not be classified as an
inherent part of the right to vote, but rather as a limitation of
the right to vote that needs to be justified in terms of the
limitation clause. This is because the national voters roll
could have been compiled simply by transferring the
names on the population register to the national voters
roll.188 This argument assumes that only the names of
those 18 years and older could be placed on such a voters
 role. It also assumes that the population register is up to
date and accurate.
The opposite view is that while voting is a right, it is not
unreasonable to say that it imposes certain duties on
citizens in order to exercise this right. One of these duties
is to take the trouble to register to vote. Voters who do not
bother to register on the voters role may also be less
concerned and informed about politics and about issues of
the day and would arguably be far less likely to cast their
votes.

Despite the fact that section 19(3) of the Constitution provides that every
adult citizen has the right to vote, section 8 of the Electoral Act excludes
certain categories of adult citizens from voting by providing that they may
not be registered as voters. Section 8 of the Act provides in this respect that:
The chief electoral officer may not register a person as a
voter if that person:
(a) has applied for registration fraudulently or
otherwise than in the prescribed manner;
(b) has been declared by the High Court to be of
unsound mind or mentally disordered;
(c) is detained under the Mental Health Act 18 of 1973;
or
(d) is serving a sentence of imprisonment without the
option of a fine.189
These limitations are subject to the limitation clause as set out in section 36
of the Constitution and the courts could be called on to determine the
constitutionality of these exclusions. Apart from the right to vote,
section 19(3) also provides that every citizen has the right to vote in
secret.190

14.3.5.2 Regulating the right to vote

Like all other rights guaranteed in the Bill of Rights, Parliament may pass
legislation that regulates the manner in which the right to vote may be
exercised. The Constitutional Court set out the test that must be used to
determine whether legislation that regulates the right to vote is
constitutionally valid in New National Party.
At issue in this case was the fact that before a citizen may register as a
voter, he or she has to fulfil the registration requirements set out in section 6
of the Electoral Act. One of these requirements is that he or she must be in
possession of a green bar-coded identity document.191 This document
replaced the old, much larger, blue identity document which did not contain
a bar code in 1986. In New National Party, a majority of the Constitutional
Court held that this requirement was constitutionally valid because it was
rationally related to a legitimate governmental purpose. At the time when
the case was brought, several older voters (especially white voters) had not
replaced the old blue identity document with the new green document.
According to statistics accepted by the Constitutional Court, approximately
80% of eligible voters had bar-coded IDs, 10% had no IDs at all and 10%
were in possession of valid IDs that were not bar-coded. The 10% of
eligible voters who were in possession of valid IDs that were not bar-coded
amounted to approximately 2,5 million people.
In rejecting the argument that the requirement that a person could only
register if he or she were in possession of a green bar-coded identity book
was unconstitutional, the Constitutional Court affirmed that Parliament had
the authority to determine the way in which voters must identify
themselves. It nevertheless stated that Parliament does not have a free hand
to do so. This is because the Constitution imposes important limits on the
manner in which Parliament may exercise its powers.
First, the method that Parliament adopts for voters to identify themselves
must not infringe the principle of the rule of law.192 This will be the case if
the measures are not rationally related to a legitimate governmental
objective. This is because arbitrariness is inconsistent with the rule of law
which is a core value of the Constitution.193 The majority held that
requiring the bar-coded identity book for voter registration was rational
because:
 [t]he bar-code on the document facilitates quick, easy
and reliable verification of the fact that the name of the
person has been entered on the population register. In
addition, it is much easier for officers charged with the
verification of the necessary particulars at the point of
registration and voting to perform this task if they are to
do so consistently by reference to a single type of identity
document. Recognition of a multiplicity of documents for
this purpose could be potentially confusing, give rise to
error and slow down the process.194
Second, the measures must not unjustifiably infringe the right to vote
guaranteed in section 19(3) of the Constitution.195 In this regard, the
Constitutional Court held that the method Parliament adopts for voters to
identify themselves will infringe the right to vote if, at the time the method
was adopted by Parliament, an eligible voter who wanted to vote would not
be able to do so even though he or she took reasonable steps in pursuit of
his or her right to vote. This is because any method which was not
sufficiently flexible to be reasonably capable of achieving the goal of
ensuring that people who wanted to vote would be able to do so if they
acted reasonably in pursuit of the right, had the potential to infringe the
right.196 Given this test, the majority found that the bar-coded ID
requirement did not infringe the right to vote. This is because even though
the Electoral Act had been promulgated only nine months before the
general election, there was no evidence to show that at the time Parliament
passed the Electoral Act the Department of Home Affairs would be unable
to issue a bar-coded ID to any eligible voter who applied for one before the
voter registration process closed. Any eligible voter who took reasonable
steps to obtain a bar-coded ID and to register as a voter, therefore, would be
able to vote.197

CRITICAL THINKING
Was the rationality standard used by the majority
in the New National Party case correct?
In her minority judgment in the New National Party case,
O’Regan J disagreed with the application of a rationality
standard to this issue. Given the role played by voting in
determining who should exercise political power, the right
to vote is ‘worthy of particular scrutiny by a court to ensure
that fair participation in the political process is afforded’.198
According to O’Regan J, the majority’s approach would be
appropriate in relation to determining whether legislation
giving rise to differential treatment is constitutional, but it
would be:
far too deferential a standard for determining whether legislation
enacted by Parliament to enable citizens to exercise their right to
vote gives rise to an infringement of the right to vote.

In my view, it is quite appropriate to require Parliament to act

reasonably. The right to vote is foundational to a democratic
system. Without it, there can be no democracy at all. What is more
the right cannot be exercised in the absence of a legislative
framework. That framework should seek to enhance democracy not
limit it. To do so, it needs to draw all citizens into the political
process. Regulation, which falls short of prohibiting voting by a
specified class of voters, but which nevertheless has the effect of
limiting the number of eligible voters needs to be in reasonable
pursuance of an appropriate government purpose. For a court to
require such a level of justification, is not to trample on the terrain
of Parliament, but to provide protection for a right which is
fundamental to democracy and which cannot be exercised at all
unless Parliament enacts an appropriate legislative framework.199

The difference between the majority judgment and the

minority judgment is therefore quite stark. The majority
used a rationality standard and hence found that the
impugned provisions requiring bar-coded identity books to
register to vote was in compliance with the right to vote.
O’Regan J in her minority decision, using a
reasonableness standard, held the very opposite. Given
South Africa’s history, in which the vast majority of citizens
 were denied the right to vote, it is surprising that the
majority employed the rationality standard, which is easy to
meet, rather than the more searching standard of
reasonableness which O’Regan J supported.

14.3.5.3 Exclusions from the right to vote

14.3.5.3.1 Introduction
Besides regulating the right to vote, Parliament has also excluded certain
categories of citizens from the right to vote. Among these are prisoners and
citizens living abroad. The Constitutional Court has considered the
constitutional validity of these exclusions in a number of cases.200

14.3.5.3.2 Prisoners
Apart from August which is discussed above, the Constitutional Court has
considered the exclusion of prisoners from the right to vote in Minister of
Home Affairs v National Institute for Crime Prevention and the Re-
integration of Offenders (NICRO) and Others.201 Unlike in August, this
case dealt with a legislative provision purporting to limit the rights of
prisoners to vote.202 The provisions effectively disenfranchised convicted
prisoners serving sentences of imprisonment without the option of a fine by
prohibiting them from registering as voters and from voting while in
prison.203 Unsentenced prisoners and prisoners incarcerated because of
their failure to pay their fines retained the right to register and vote.
After the provisions of the Electoral Laws Amendment Act 204 came
into operation, the respondents applied for an order declaring them to be
unconstitutional and invalid on the grounds that they unjustifiably infringed
the right to vote. A majority of the Constitutional Court agreed with the
respondents and granted the order.
The Constitutional Court accepted (and this was conceded by all parties)
that these provisions, which prevented most prisoners from voting,
infringed on their right to vote which is guaranteed in section 19(3)(a) of
the Constitution. The only question was whether such a limitation of the
right was justifiable in terms of the limitation clause or not. The majority of
the court (per Chief Justice Chaskalson) held that the limitation was not
justifiable and hence was unconstitutional.205
The Court rejected the argument that special arrangements would have to
made for the prisoners in question to vote and that these special
arrangements could put the integrity of the voting process at risk. Special
measures, therefore, would have to be put in place and this would put a
strain on the Electoral Commission’s financial and logistical resources. The
factual basis for this justification had not been established. The Electoral
Commission had made arrangements for registering unsentenced prisoners
and prisoners incarcerated because of their failure to pay their fines. There
was nothing to suggest that extending these arrangements to include
convicted prisoners serving sentences of imprisonment without the option
of a fine would place an undue burden on the Electoral Commission’s
financial and logistical resources. Apart from saying that it would be costly
to do so, the Minister provided no information about the logistical problems
or estimates of the costs involved.206
The Court also grappled with the argument advanced by the government
that it was important for the government to denounce crime and to
communicate to the public that the rights that citizens have, such as the
right to vote, are related to fulfilling their duties and obligations as citizens.
The Court pointed out that a majority of the Canadian Supreme Court had
rejected a similar argument in Sauve v Canada (Chief Electoral Officer)
207 despite the fact that the Canadian government had presented a great
deal of evidence to justify the law in question.208 Unlike the Canadian
government, the Court held further, the Minister had presented almost no
evidence to justify the Amendment Act other than simply saying that the
‘government did not want to be seen to be soft on crime and that it would
be unfair to others who cannot vote to allow prisoners to vote’.209 These
statements, the Court went on to conclude, could not hope to justify the
Amendment Act which applied to both serious and relatively minor crimes
and even to prisoners whose convictions and sentences were still under
appeal.210
 PAUSE FOR REFLECTION

Why the government lost the NICRO case

The NICRO case must be understood with reference to the
discussion on the limitation clause enquiry in chapter 10.
The government lost the case because it failed to provide
evidence to justify its legislative choices. It did not put any
evidence before the Court as to why the particular category
of prisoners (all convicted prisoners serving sentences of
imprisonment without the option of a fine) had to be
distinguished from other categories of prisoners and why it
was important to disenfranchise them. If the law had only
disenfranchised prisoners convicted of the most serious
crimes and if the government had provided evidence on
how the legislation effectively targeted the most dangerous
and morally reprehensible criminals, the limited
disenfranchisement might have been found to be
justifiable.

14.3.5.3.3 Citizens working abroad

It is widely believed that a sizeable number of South African citizens live
abroad although exact figures are not available. Legislation did not provide
for citizens living abroad (who have not emigrated and thus remain citizens
of the country) to vote in South African elections.
In 2009, the Constitutional Court declared invalid the legal provisions
which excluded South Africans living abroad from voting in Richter. The
applicant was a South African citizen who was a registered voter and who
was working in the United Kingdom as a teacher. Although he wanted to
vote in the 2009 general elections, he was unable to do so because
section 33(1)(e) of the Electoral Act only made provision for South
Africans who were temporarily absent from the Republic for business,
holiday, educational and sporting purposes to cast special votes. It made no
provision for South Africans who were absent for employment or other
purposes to cast special votes.
 The Constitutional Court affirmed that the right to vote also imposes
burdens on citizens. First, they have to register in good time. Then, on
polling day, they may have to journey some distance to a voting station.
They have to be in possession of a bar-coded identity document and they
may have to stand in a long queue to vote.211 To determine whether the
burdens placed on a voter who wishes to exercise his or her right to vote are
inconsistent with the Constitution, the Court held further, it must apply the
test adopted in New National Party. This test provides that a statutory
provision will infringe the right to vote if it prevents an eligible voter who
wishes to vote and who has taken reasonable steps in pursuit of the right to
vote from voting.212 Note that reasonableness here does not relate to the
test developed by O’Regan J for the minority in New National Party. That
test asked whether Parliament had acted reasonably. In this case, the Court
asked whether arrangements to vote would have made it impossible for a
voter who had acted reasonably to exercise his or her vote.
The Constitutional Court noted that apart from travelling back to South
Africa from the United Kingdom to be present on polling day, there were no
steps that the applicant in the position of Mr Richter could take to vote in
the 2009 general elections. Requiring the applicant and other citizens in his
position to travel thousands of kilometres across the globe to be in their
voting districts on voting day, the Court held further, was not reasonable.
This was especially so in light of the fact that section 33(1)(b) of the
Electoral Act provided that those citizens who were working abroad on
government service did not have to return home to vote but could vote at
South African embassies, high commissions and consulates.213
In addition, the Court went on to hold, it was important to note that we
live in a global economy and that more and more South Africans are
working abroad. The fact that these citizens want to exercise their civic
responsibilities and vote should be encouraged.214
After finding that section 33(1)(e) of the Electoral Act infringed the right
to vote, the Constitutional Court turned to consider whether this
infringement satisfied the requirements of the limitation clause. The Court
held that it did not. In arriving at this decision, the Court began by pointing
out that in terms of section 33(1)(b) those citizens who are working abroad
for the government on voting day are permitted to vote while they are
abroad.215 In addition, the Court pointed out further, many other open and
democratic societies allow citizens who are abroad on voting day to vote
while they are abroad.216 Finally, the Minister was unable to point to any
legitimate governmental purpose that would be served by preventing
citizens who are abroad from voting.217

14.3.6 The right to stand for and hold office

Political rights do not only include the right to vote and to participate as a
citizen voter in free and fair elections. Section 19(3)(b) of the Constitution
also guarantees for every adult citizen the right to ‘stand for public office
and, if elected, to hold office’. As we pointed out in chapter 4 in this book,
sections 47(1) and 106(1) specifically state that some citizens are not
eligible to become a member of the national Parliament or the provincial
legislatures. Similarly, sections 47(3) and 106(3) provide for incidences
where a citizen elected to the national Parliament or the provincial
legislatures as a member of a specific political party would lose his or her
membership. As we have already discussed these matters, we will not deal
with them again here.

SUMMARY

Given that the majority of South Africa’s citizens were denied political
rights prior to 1994, it is not surprising that section 19 of the Constitution
protects a wide range of political rights. Among these are the right to make
political choices; the right to free, fair and regular elections and the right to
vote in secret and to stand for public office. These rights are important not
only because they are aimed at preventing the wholesale denial of political
rights from ever taking place again, but also because they are aimed at
giving effect to the system of representative democracy enshrined in the
Constitution.
In so far as the rights guaranteed in section 19 of the Constitution are
concerned, however, it is important to note that, unlike most of the other
rights set out in the Bill of Rights, these rights are available only to citizens.
The Constitution, therefore, distinguishes between citizens who are the
bearers of political rights and ‘everyone’ else, including, for example,
foreign nationals, who are not entitled to participate in the exercise of
political rights. While foreign nationals enjoy almost all of the other rights
contained in the Bill of Rights, only citizens can invoke the political rights
set out in section 19.
The political rights protected in section 19 of the Constitution must be
read together with the right to freedom of expression guaranteed in section
16 and the right to freedom of assembly, demonstration, picket and petition
guaranteed in section 18. This is because democracy entails more than
simply being able to vote. It must also give people an opportunity to form
their own views and to express them by coming together and protesting
peacefully. This allows people whose influence on political parties would
otherwise be minimal to raise issues that are important to them, to draw
attention to these issues and to engage with their fellow citizens and
representatives about these issues.
Apart from participation in the political process, the rights to freedom of
expression and assembly, demonstration, picket and petition also promote a
number of other goals. The right to freedom of expression, for example,
recognises and protects the moral agency of individuals in our society and
facilitates the search for truth. The right to freedom of assembly,
demonstration, picket and petition promotes the development of each
individual’s unique personality. This is because our personalities do not
develop in isolation, but rather in the context of groups. Cultural, education
and religious assemblies may, therefore, be as important as political
assemblies.
Finally, it is important to note that both of these rights have internal
modifiers. The right to freedom of expression, therefore, does not include
the right to promote war, incite imminent violence or advocate hatred that is
based on race, ethnicity, gender or religion, and that constitutes incitement
to cause harm. The right to freedom of assembly, demonstration, picket and
petition does not include the right to assemble, demonstrate, picket or
petition in a violent or armed manner. Although these sorts of activities are
not prohibited by the Constitution, they are also not protected by the
Constitution. This means that they may be prohibited by legislation. The
Promotion of Equality and Prevention of Unfair Discrimination Act
(PEPUDA) thus prohibits hate speech and the Regulation of Gatherings Act
prohibits armed and violent assemblies, demonstrations and pickets.

1 See S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449
(CC) (11 April 2001) para 28; Islamic Unity Convention v Independent Broadcasting Authority
and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April
2002) para 25.
2 Act 74 of 1982.
3 Shabalala and Others v Attorney-General of the Transvaal and Another (CCT23/94) [1995]
ZACC 12; 1995 (12) BCLR 1593; 1996 (1) SA 725 (29 November 1995) para 26.
4 Islamic Unity Convention para 30.
5 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7;
1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 8.
6 See Shabalala; South African National Defence Union; Islamic Unity Convention; Mamabolo.
7 South African National Defence Union para 8.
8 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 7.
9 (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April
2001) para 37.
10 Mamabolo para 37.
11 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety
and Security and Others (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5)
BCLR 608 (9 May 1996) para 26.
12 Herman, ES and Chomsky, N (1988) Manufacturing Consent: The Political Economy of the
Mass Media 306.
13 Herman and Chomsky (1988) 306.
14 Case para 26.
15 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 18.
16 (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA 141 (CC);
2009 (3) BCLR 309 (CC) (31 July 2008) para 52. See also Mthembi-Mahanyele v Mail &
Guardian Ltd and Another (054/2003) [2004] ZASCA 67; [2004] 3 All SA 511 (SCA)
(2 August 2004) para 41.
17 The First Amendment reads as follows: ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or of the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances’.
18 (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345; 2003 (4) BCLR 357 (11 March 2003).
19 Phillips para 15.
20 Islamic United Convention paras 28–9.
21 Hamata and Another v Chairman, Peninsula Technikon Internal Disciplinary Committee and
Others 2000 (4) SA 621 (C) para 32.
22 Islamic Unity Convention para 27.
23 Islamic Unity Convention para 28.
24 Islamic Unity Convention para 31.
25 (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005)
para 47.
26 See De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others
(CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003) para 48.
27 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October
2003).
28 Act 65 of 1996.
29 De Reuck paras 46–7.
30 De Reuck para 48.
31 De Reuck para 48.
32 De Reuck para 59.
33 De Reuck para 64–5.
34 De Reuck paras 71–9.
35 Lucas, M (2006) On gay porn Yale Journal of Law and Feminism 18(1):299–302 at 299.
36 Lucas (2006) 299. See also Sherman, JG(1995) Love speech: The social utility of pornography
Stanford Law Review 47(4):661–706 at 702–3, where he argues that ‘gay male pornography is
a necessary tool in gay men’s struggle to attain sexual integrity’, and asserts that ‘[t]he relative
importance of pornography in the gay male imagination results from the suppression of other
forms of gay expression: not only artistic expression but lived interpersonal expression’.
37 Khumalo paras 22–4; South African Broadcasting Corporation Limited v National Director of
Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007
(2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006) para 24; Print Media South
Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22;
2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28 September 2012) para 54.
38 Government of the Republic of South Africa v Sunday Times Newspaper and Another 1995 (2)
SA 221 (T) 227H–228A.
39 Khumalo para 24.
40 Sunday Times 227H–228A.
41 Bill B1.4 of 2010.
42 S 1.1.
43 S 1.1 of the Secrecy Bill.
44 S 1.1 of the Secrecy Bill.
45 1.1.
46 S 32 of the Secrecy Bill.
47 S 32 of the Secrecy Bill.
48 S 22.
49 De Vos, P (2011, 31 May) Let me tell you a secret … Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/let-me-tell-you-a-secret/. For further criticism on the Bill,
see generally Donnelly, L (2011, 23 June) Secrecy bill extension welcomed – concerns remain
Mail & Guardian Newspapers available at http://mg.co.za/article/2011-06-23-secrecy-bill-
extension-welcomed-concerns-remain.
50 See Holomisa v Argus Newspaper 1996 (2) SA 588 (W) 855–56; Midi Television (Pty) Ltd v
Director of Public Prosecutions (Western Cape) (100/06) [2007] ZASCA 56; [2007] SCA 56
(RSA); [2007] 3 All SA 318 (SCA) (18 May 2007) para 6; South African Broadcasting
Corporation para 42; Johncom Media Investments Limited v M and Others (CCT 08/08) [2009]
ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009) para 28.
51 (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL
18339 (CC) (21 September 2006).
52 SABC para 29
53 SABC para 30.
54 SABC para 41.
55 SABC para 11.
56 SABC para 42. See also generally S v Shinga (Society of Advocates (Pietermaritzburg)) as
Amicus Curiae), S v O’Connell and Others (CCT56/06, CCT80/06) [2007] ZACC 3; 2007 (5)
BCLR 474 (CC); 2007 (2) SACR 28 (CC) (8 March 2007).
57 (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)
para 39.
58 Independent Newspapers paras 40–1.
59 Independent Newspapers para 43.
60 Independent Newspapers para 44.
61 Independent Newspapers para 45.
62 (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March
2009).
63 70 of 1979.
64 Johncom Media Investments para 23.
65 Johncom Media Investments para 29.
66 Johncom Media Investments para 30.
67 Johncom Media Investments para 42.
68 (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC)
(28 September 2012).
69 Print Media South Africa para 20.
70 Print Media South Africa para 27.
71 Print Media South Africa para 17.
72 Print Media South Africa para 60.
73 Print Media South Africa para 98.
74 Print Media South Africa para 55.
75 Print Media South Africa para 56.
76 ICASA was created by the Independent Communications Authority of South Africa Act 13 of
2000. For a discussion on the role of the regulation of the public broadcaster, see Tomaselli,
KG (2008) Exogenous and endogenous democracy: South African politics and media
International Journal of Press/ Politics 13(2):171–80 at 171.
77 There are therefore similarities between the regulation of electronic broadcasters and that of the
print media although different bodies deal with complaints relating to these categories of the
media in terms of different Codes.
78 Islamic United Convention para 10.
79 Afri-Forum and Another v Malema and Others (20968/2010) [2011] ZAEQC 2; 2011 (6) SA
240 (EqC); [2011] 4 All SA 293 (EqC); 2011 (12) BCLR 1289 (EqC) (12 September 2011)
para 29, citing Braun, S (2004) Democracy Off Balance: Freedom of Expression and Hate
Propaganda Law in Canada 62.
80 See also Govindjee, A ‘Freedom of expression’ in Govindjee, A and Vrancken, P (2009)
Introduction to Human Rights Law 122.
81 Act 4 of 2000.
82 S 1 of the PEPUDA defines prohibited grounds as ‘race, gender, sex, pregnancy. marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth’ or any other ground where discrimination causes or perpetuates
systemic disadvantage or undermines human dignity or adversely affects the equal enjoyment
 of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a
listed ground.
83 See De Vos, P (2010) On ‘Shoot the Boer’, hate speech and the banning of struggle songs 11.
84 (2010 (7) BCLR 729 (EqC)) [2010] ZAEQC 2; 02/2009 (15 March 2010) para 2.
85 Sonke Gender Justice Network para 17(b)(x).
86 De Vos (2010) 12.
87 (20968/2010) [2011] ZAEQC 2; 2011 (6) SA 240 (EqC); [2011] 4 All SA 293 (EqC); 2011
(12) BCLR 1289 (EqC) (12 September 2011).
88 Afri-Forum paras 109–11.
89 Afri-Forum para 93.
90 (44/2009) [2010] ZASCA 41; 2010 (4) SA 210 (SCA); [2010] 3 All SA 497 (SCA) (30 March
2010) para 7.
91 Afri-Forum paras 7–8.
92 Afri-forum paras 35–6.
93 De Vos, P (2011, 12 September) Malema judgment: A re-think on hate speech needed
Constitutionally Speaking available at http://constitutionallyspeaking.co.za/malema-judgment-
a-re-think-on-hate-speech-needed. See also Modiri, J (2013) Race, realism and critique: The
politics of race and Afri-forum v Malema in the Equality Court South African Law Journal
130(2):274–93; Brown, J (2012) Judges’ history: On the use of history in the Malema
judgment South African Journal on Human Rights 28(2):316–27.
94 Smuts, D and Westcott, S (eds) (1999) The Purple Shall Govern: A South African A to Z of
Nonviolent Action.
95 See Berger, JM (2001) Litigation strategies to gain access to treatment for HIV/AIDS: The case
of South Africa’s Treatment Action Campaign Wisconsin International Law Journal 20:595–
614 at 596; Berger, JM and Kapczynski, A ‘The story of the TAC case: The potential and limits
of socio-economic rights litigation in South Africa’ in Hurwitz, DR and Satterthwaite, ML
(eds) (2009) Human Rights Advocacy Stories.
96 Berger and Kapczynski (2009) 4.
97 (CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC); [2012] 10 BLLR 959 (CC); (2012)
33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13 June 2012) para 61.
98 Woolman, S ‘Assembly, demonstration and petition’ in Currie, I and De Waal, J (2013) The
Bill of Rights Handbook 6th ed 377.
99 BVerfGE 73, 206.
100 BVerfGE 73, 206 at 360.
101 BVerfGE 73, 206 at 361.
102 Rautenbach, IM and Malherbe, EFJ (2012) Constitutional Law 6th ed 376.
103 Rautenbach and Malherbe (2012) 376.
104 Act 205 of 1993.
105 S 1 of the Regulation of Gatherings Act.
106 S 1 of the Regulation of Gatherings Act.
107 Woolman (2013) 386.
108 Act 66 of 1995.
109 S 69(3) of the LRA.
110 (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD); [2011] 1 All SA 537 (KZD);
(2010) 31 ILJ 2539 (KZD) (3 September 2010).
111 Growthpoint Properties para 46.
112 Growthpoint Properties paras 47–8.
113 Growthpoint Properties para 57.
114 Growthpoint Properties para 58
115 Growthpoint Properties para 59.
116 Growthpoint Properties para 60
117 Growthpoint Properties para 61.
118 Rautenbach and Malherbe (2012) 377.
119 See Free State Petitions Act 2 of 2008; Gauteng Petitions Act 5 of 2002; KwaZulu-Natal
Petitions Act 4 of 2003; Limpopo Petitions Act 4 of 2003; Mpumalanga Petitions Act 6 of
2000; Northern Cape Petitions Act 8 of 2009; North West Petitions Act 2 of 2010.
120 Act 17 of 1956.
121 Act 74 of 1982.
122 For a comprehensive discussion of the operation of the Regulation of Gatherings Act, see
Currie and De Waal (2013) 381–3.
123 S 9(2)(e) of the Gatherings Act. See also Memeza, M (2006) A critical review of the
implementation of the Regulation of Gatherings Act 205 of 1993: A local government and civil
society perspective available at http://www.fxi.org.za.
124 De Vos, P (2009) Freedom of assembly and its limits Constitutional Court: Without Prejudice
9(8):4–5.
125 S 3(5)(c).
126 S 4(1).
127 S 4(4)(b).
128 S 4(4)(c) of the Gatherings Act.
129 Inside Rustenburg’s banned protests (2013, 7 March) available at
http://www.ru.ac.za/facultyofhumanities/latestnews/name,79323,en.html.
130 S 3(2)
131 S 11(1).
132 SATAWU para 37.
133 SATAWU para 38.
134 SATAWU para 39.
135 SATAWU para 43.
136 SATAWU paras 4–5.
137 SATAWU paras 51–9.
138 SATAWU paras 34 and 94.
139 New National Party v Government of the Republic of South Africa and Others (CCT9/99)
[1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (CC) (13 April 1999) para 10; Minister
of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders
(NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280; 2004 (5) BCLR 445
(CC) (3 March 2004) para 47; Ramakatsa and Others v Magashule and Others (CCT 109/12)
[2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64.
140 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64.
141 Ramakatsa para 65.
142 In Richter v The Minister for Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC
3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) (12 March 2009) and AParty and Another
v The Minister for Home Affairs and Others, Moloko and Others v The Minister for Home
Affairs and Another (CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009
(6) BCLR 611 (CC) (12 March 2009), the Constitutional Court was called on to determine the
voting rights of non-resident citizens.
143 Rautenbach and Malherbe (2012) 382.
144 Ramakatsa para 71. S 197(3) of the Constitution provides that no employee of the public
service may be favoured or prejudiced because he or she supports a particular political party or
cause.
145 Ramakatsa para 71.
146 Ramakatsa para 72.
147 Ramakatsa para 73.
148 ANC National Disciplinary Committee: Press Statement (2012, February) Public
Announcement on the Disciplinary Hearings of F Shivambu, J Malema and S Magaqa
available at http://www.anc.org.za/show.php?id=9414.
149 There are several references to political parties in the Constitution. For example, s 47(3)(c)
states that a member of the NA who ‘ceases to be a member of the party that nominated that
person as a member of the Assembly’ will lose his or her membership of the Assembly. S 57(2)
(b) similarly allows minority parties to participate in the proceedings of the NA in a manner
consistent with democracy.
150 Act 73 of 1998.
151 Act 51 of 1996.
152 Ss 15, 16 and 17 of the Electoral Commission Act as well as ss 26–31 of the Electoral Act.
153 Ss 26(b) and 27 of the Electoral Act.
154 S 99 of the Electoral Act.
155 Liberal Party v The Electoral Commission and Others (CCT 10/04) [2004] ZACC 1; 2004 (8)
BCLR 810 (CC) (5 April 2004).
156 (CCT 10/06) [2006] ZACC 1; 2006(3) SA 305 (CC); 2006(5) BCLR 579 (CC) (24 February
2006) para 31.
157 Act 27 of 2000.
158 African Christian Democratic Party para 27.
159 African Christian Democratic Party para 21.
160 African Christian Democratic Party para 33.
161 Act 103 of 1997.
162 Lowry, MP (2008) Legitimizing elections through the regulation of campaign financing: A
comparative constitutional analysis and hope for South Africa Boston College International
and Comparative Law Review 31(2):185–212 at 185.
163 Steytler, N ‘The legislative framework governing party funding in South Africa’ in Matlosa, K
(2004) The Politics of State Resources: Party Funding in South Africa 59 and 64. For a
discussion regarding the funding of political parties, see generally Tshitereke, C (2002)
Securing democracy: Party finance and party donations – the South African challenge Institute
for Security Studies 63:1–12.
164 Act 2 of 2000.
165 (9828/03) [2005] ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C) (20 April 2005)
para 50.
166 IDASA para 53. S 50(1)(a) of the PAIA provides that ‘[a] requester must be given access to any
record of a private body if: (a) that record is required for the exercise or protection of any right;
(b) that person complies with the procedural requirements in this Act relating to a request for
access to that record; and (c) access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part’.
167 IDASA para 71.
168 IDASA para 71.
169 Lowry (2008) 189.
170 In this regard, see Sarakinsky, I (2007) Political party finance in South Africa: Disclosure
versus secrecy Democratization 14(1):111–28 at 120–1.
171 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).
172 New National Party para 12. In the same case the Constitutional Court also held that unlike the
right to vote, all South African citizens irrespective of their age have a right to free, fair and
regular elections (para 12).
173 New National Party para 118 where O’Regan stated: ‘Unlike some of the other rights in
chapter 2 of the Constitution, the primary obligation which section 19(2) and (3) impose upon
government is not a negative one, requiring government to refrain from conduct which could
cause an infringement of the right, but a positive one, requiring government to take positive
steps to ensure that the right is fulfilled.’
174 See New National Party paras 13–14; August and Another v Electoral Commission and Others
(CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999) para 16;
NICRO para 28; Richter para 54.
175 New National Party para 16.
176 S 181(3) provides that ‘[o]ther organs of state, through legislative and other measures, must
assist and protect [the Chapter Nine Institutions] to ensure the independence, impartiality,
dignity and effectiveness of these institutions’ and s 181(4) provides that ‘[n]o person or organ
of state may interfere with the functioning of [the Chapter Nine Institutions]’. The Electoral
Commission is also accountable to the NA, and must report on its activities and the
performance of its functions at least once a year (s 181(5)).
177 New National Party para 98.
178 New National Party para 99.
179 New National Party para 12.
180 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999).
181 S 5(1)(e) of the Electoral Commission Act.
182 August para 33.
183 August para 17.
184 New National Party para 120.
185 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC)
(12 March 2009) para 53.
186 In New National Party para 6, the Constitutional Court held that these three requirements are
derived from s 19(3) of the Constitution read together with s 46(1)(b) and 46(1)(c). S 46(1)(b)
provides that ‘the National Assembly consists of no fewer than 350 and no more than 400
women and men elected as members in terms of an electoral system that is based on the
national common voters roll’ and s 46(1)(c) provides that ‘the National Assembly consists of
no fewer than 350 and no more than 400 women and men elected as members in terms of an
electoral system that provides for a minimum voting age of 18 years’.
187 New National Party para 15.
188 Rautenbach and Malherbe (2012) 89 fn 56.
189 The fact that prisoners who were serving life sentences without the option of a fine were
excluded from voting was declared unconstitutional by the Constitutional Court in NICRO.
190 The rendering of assistance by electoral officials at the request of a voter is also subject to the
secrecy of the vote. S 39 of the Electoral Act provides that assistance may be given to voters
who are unable to read, are blind or visually impaired. For a discussion of the plight of the
visually impaired, see generally Maseko, TW (2009) The right of blind and visually impaired
citizens to vote in secret: Is there a duty to do more? SA Public Law 24(2):623–39.
191 S 6(1) of the Electoral Act provides that ‘[a]ny South African citizen in possession of an
identity document may apply for registration as a voter’ and s 1 of the Act defines an identity
document as a bar-coded identity card issued in terms of the Identification Act 68 of 1997 or a
temporary identification certificate issued in terms of the Identification Act.
192 New National Party para 19.
193 New National Party para 24.
194 New National Party para 26.
195 New National Party para 20.
196 New National Party para 23.
197 New National Party para 43.
198 New National Party para 122.
199 New National Party para 122.
200 See August; NICRO; Richter; AParty.
201 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2004).
202 The amendments to the Electoral Act effecting these limitations were made shortly before the
2004 general election when Parliament passed the Electoral Laws Amendment Act 34 of 2003.
203 S 8(2)(f) of the Electoral Act prohibited convicted prisoners who were ‘serving a sentence of
imprisonment without the option of a fine’ from registering as voters and s 24B(2) prohibited
convicted prisoners who were ‘serving a sentence of imprisonment without the option of a
fine’ and who were already on the voters roll from voting if they were in prison on the day of
the election.
204 Act 34 of 2003.
205 NICRO para 16.
206 NICRO para 49.
207 2002 SCC 68.
208 NICRO para 58.
209 NICRO para 66.
210 NICRO para 67.
211 Richter para 56.
212 Richter para 57.
213 Richter para 68.
214 Richter para 69.
215 Richter para 76.
216 Richter para 77.
217 Richter para 78.
Administrative justice, access to
information, access to courts and
labour rights

15.1 Introduction
15.2 The right to just administrative action
15.2.1 Introduction
15.2.2 The relationship between the Constitution, the
Promotion of Administrative Justice Act 3 of 2000 and the
common law
15.2.3 Legislative, executive and judicial actions
15.2.4 The principle of legality
15.2.5 The main provisions of the PAJA
15.2.5.1 What constitutes administrative action
15.2.5.2 The key obligations imposed by the PAJA
15.2.5.2.1 Introduction
15.2.5.2.2 Lawful administrative action
15.2.5.2.3 Reasonable administrative action
15.2.5.2.4 Procedurally fair administrative action
15.2.5.2.5 The right to be given reasons for an administrative
action
15.3 The right of access to information
15.3.1 Introduction
15.3.2 Interpretation of the Promotion of Access to
Information Act 2 of 2000
15.3.2.1 The purpose of the PAIA
15.3.2.2 The regulation of access to information by the PAIA
15.3.2.3 The question of a ‘judicial peek’ at refused records
15.4 The right of access to the courts
15.4.1 Introduction
15.4.2 Threshold question: can the dispute in question be
resolved by the application of law?
15.4.3 Access to courts and other forums
15.4.3.1 A positive obligation on the state
15.4.3.2 The prohibition of self-help
15.4.3.3 Does a commission of enquiry constitute an
independent and impartial tribunal?
15.5 Labour relations
15.5.1 Introduction
15.5.2 The scope and ambit of section 23 of the Constitution
15.5.3 The right to fair labour practices
15.5.3.1 Introduction
15.5.3.2 Unfair dismissals in terms of the Labour Relations
Act 66 of 1995
15.5.3.3 Unfair labour practices in terms of the LRA
15.5.3.4 Unfair labour practices in terms of section 23(1) of
the Constitution
15.5.4 The right of every worker to form and join a trade union
15.5.5 The right of every worker to participate in the activities
and programmes of a trade union
15.5.6 The right of every worker to strike
15.5.7 The right to engage in collective bargaining
15.5.7.1 Introduction
 15.5.7.2 The right to engage in collective bargaining and the
LRA
15.5.7.3 The right to engage in collective bargaining and the
Constitution
Summary

15.1 Introduction
Certain rights are of particular importance because they enhance the quality
of a democracy and the conditions under which people live in that
democracy. Although these rights are not political rights per se, they create
conditions within which individuals can exercise many of their other rights
in an effective manner. Such rights are closely aligned with the value of
human dignity. This is because they take as their starting point the idea that
the individual human dignity of each person can be effectively protected
only if legal rules and regulations enhance the ability of each individual to
make important life choices despite the fact that they may not hold as much
power as the state or private bodies. These rights therefore aim to equal the
playing field by requiring the powerful to adhere to pre-announced rules, to
act in a relatively transparent manner, to share information and to provide
individuals with access to courts. This access to courts will assist
individuals to enforce these rights as well as the other rights needed to
promote their well-being and for their dignity to be fully respected. In this
chapter we discuss some of these rights, including the right to fair
administrative action, the right of access to information, the right of access
to courts and labour rights.

15.2 The right to just administrative action

15.2.1 Introduction
In most modern societies the law confers a wide range of discretionary
powers on public officials. These discretionary powers allow public
officials, for example, to grant a person a pension, a social grant, a tender or
a tax exemption. They also give public officials the power to issue building
permits, fishing licences, passports and so on.
While these sorts of discretionary powers have to be granted to
government officials to ensure that modern government works effectively,
the exercise of such powers may also be abused to the detriment of ordinary
people who rely on the state to deal fairly with such matters. To prevent
abuse, the right to administrative justice guaranteed in section 33 of the
Constitution provides that these powers must be exercised in a manner that
is lawful, reasonable and procedurally fair.
This right must be viewed against the context of South Africa’s apartheid
past. During the apartheid era, government officials routinely abused their
discretionary powers. These discretionary powers were constantly expanded
by legislation, especially in the latter years of the apartheid regime. At the
same time, the court’s common law authority to review the exercise of these
powers was often restricted or ousted.1 Even where the courts’ jurisdiction
was not ousted, apartheid-era courts sometimes appeared reluctant to
exercise their power of administrative review.2
The Constitution seeks to prevent a recurrence of this abuse of power. It
therefore includes a right to just administrative action in section 33 of the
Bill of Rights. The primary purpose of the right to administrative justice is
to ensure that the administrative powers given to public officials are
exercised in a procedurally fair manner and that the outcome of the
decision is lawful and reasonable. It is thus a right which seeks to ensure
proper processes are followed before administrative decisions are made and
that those decisions are lawful and reasonable.
Apart from granting courts the power to review and set side decisions
that are unreasonable, unlawful and procedurally unfair, the right to
administrative justice also requires public officials to provide reasons for
administrative decisions that adversely affect rights. The duty to supply
reasons is intended to ensure that public officials properly apply their minds
before making a decision. This particular provision of the right contributes
to better decision making.
Baxter divides administrative law into general and particular aspects.
Specific administrative law refers to the principles of law that are
applicable to discrete areas of administration, for example education, the
environment, the police, the revenue service and so on. In most instances,
an enabling Act regulates these areas, as well as regulations promulgated in
terms of the Act and decisions interpreting the Act and the regulations.
General administrative law refers to the principles of law that are
applicable to all administrative entities. Most textbooks deal with the
general principles of administrative law that are applicable to the entire
administration.3
Prior to 1994, the legal principles that were applicable to all
administrative entities, in other words, general administrative law, were
drawn largely from the common law. The common law afforded the courts
the inherent power to set aside decisions that were procedurally unfair, that
failed to comply with the requirements of the enabling statute or that were
so grossly unreasonable that some irregularity could be inferred. One of the
major shortcomings of the common law, however, was that it imposed no
general obligation on the public official to provide reasons for his or her
decision.
In 1994, momentous changes occurred with the promulgation of the
interim Constitution. Section 24 of the interim Constitution entrenched the
right to administrative justice. It afforded every person the right to lawful
and procedurally fair administrative action in certain circumstances. In
addition, there was an obligation to provide reasons when rights or interests
were affected. Apart from these rights, ‘every person’ was also given the
right to ‘administrative action which is justifiable in relation to the reasons
given for it where any of his or her rights is affected or threatened’ (our
emphasis).4
The final Constitution retained an administrative justice clause in
section 33 of the Bill of Rights, but the wording of the section is slightly
different from the wording in section 24 in the interim Constitution.
Section 33 of the Constitution specifically protects four categories of
administrative justice rights. It protects the right to lawful, reasonable and
procedurally fair administrative action 5 and affords everyone whose rights
have been adversely affected by administrative action the right to be given
written reasons.6
PAUSE FOR REFLECTION

The law of administrative justice a hybrid of the

old and the new
Kohn and Corder explain the context within which the law
of administrative justice must be understood by explaining
that the South African law is a ‘curious hybrid of the old
and the new’.7 Despite its common law roots which
predate the 1994 Constitution, it is a field of law that
epitomises the negotiated constitutional ‘revolution’.8
Chaskalson P explained the implications of this
transformation as follows in the decision of Pharmaceutical
Manufacturers Association of South Africa and Another: In
re Ex parte President of the Republic of South Africa and
Others:
[A]dministrative law … occupies a special place in our
jurisprudence … It is built on constitutional principles … Prior to
the coming into force of the interim Constitution, the common law
was “the main crucible” for the development of these principles of
constitutional law. The interim Constitution … was a legal
watershed. It shifted constitutionalism, and with it all aspects of
public law, from the realm of the common law to the prescripts of a
written constitution which is the supreme law.9

As Kohn and Corder point out, prior to this shift, South

African administrative law was entirely based on the
common law and bore all the hallmarks of its parent
English system.
In particular, thanks in large part to the influence of the English
constitutional lawyer, Albert Venn Dicey, it rested upon the twin
pillars of parliamentary sovereignty and the rule of law with its
obverse facet, the ultra vires doctrine, which operated as the
organising rationale of administrative law. Along with this
Westminster inheritance, came a deep distrust of government and
discretionary power and a concomitantly heavy reliance on judicial
review of administrative action as the principal means of checking
 this power. Unfortunately, transplanted into the South African
context, these two key organising principles of English
constitutional law failed to complement one another. Under
apartheid, parliamentary sovereignty came to be associated with
rule by law, rather than a substantive notion of the rule of law
pursuant to which law is insulated from politics and judges serve
as impartial and independent guardians of human rights. The
separation of powers did not exist as a practical reality and as a
result, parliamentary sovereignty came to be coupled with judicial
timidity as the hamstrung courts struggled to find ways of
controlling public power, which was largely abused for racial
ends.10

Because of this context, the role of administrative law

during apartheid is ambiguous. While it was
‘underdeveloped and functioned in an undemocratic
system that was antagonistic to fundamental rights, was
secretive and unaccountable’,11 it was also used by
lawyers in certain cases to challenge the unbridled
exercise of power by the authoritarian state.

Apart from the four categories of administrative justice rights, the right to
lawful, reasonable and procedurally fair administrative action and the right
to be given written reasons for a decision, section 33 also provides that
national legislation has to be enacted to give effect to the right to
administrative justice and that this legislation has to achieve three
objectives:
• It has to ensure and provide for the review of administrative action by a
court or other independent tribunal.
• It has to impose a duty on the state to give effect to the rights.
• It has to promote an efficient administration.12
The primary purpose of the third objective is to ensure that an appropriate
balance is maintained so that the state is not unduly burdened by
administrative requirements which could seriously inhibit its core functions.
Unlike most of the other rights in the Bill of Rights, section 33 did not
come into operation when the rest of the Constitution did on 3 February
1997. This is because the transitional provisions in section 23 of Schedule 6
provided that Parliament had to enact the national legislation referred to in
section 33(3) within three years of the commencement of the Constitution,
namely by 3 February 2000. In addition, it also provided that during this
period, section 33 would be suspended and the right to administrative
justice guaranteed in section 24 of the interim Constitution (slightly
reworded) would remain in force.
The national legislation referred to in section 33(3) is the Promotion of
Administrative Justice Act (PAJA).13 This Act was passed on 3 February
2000 and, with the exceptions of section 4 and section 10, it came into
operation on 30 November 2000. Sections 4 and 10 came into operation on
31 July 2002.

15.2.2 The relationship between the Constitution, the

Promotion of Administrative Justice Act 3 of 2000 and
the common law
Prior to the transition to democracy, the judicial review of administrative
action was governed largely by common law principles and rules. When the
interim Constitution and later the Constitution came into operation,
however, these common law rules and principles were incorporated into the
Constitution.
The Constitutional Court referred to this process in the Pharmaceutical
Manufacturers case, when it held that:
[t]he common law principles that previously provided
the grounds for judicial review of public power have
been subsumed under the Constitution and, insofar as
they might continue to be relevant to judicial review,
they gain their force from the Constitution. In the
judicial review of public power, the two are intertwined
and do not constitute separate concepts.14
An important consequence of the incorporation of the common law
principles and rules governing judicial review of administrative action is
that they no longer have a separate existence. Instead, these common law
principles and rules have become a part of constitutional law. As stated by
the Constitutional Court:
There are not two systems of law … [but] only one …
which is shaped by the Constitution … and all law,
including the common law, derives its force from the
Constitution and is subject to constitutional control.15
The constitutionalisation of administrative law meant that before the PAJA
came into operation, challenges to the validity of administrative action
involved the direct application of the right to administrative justice first in
terms of the interim Constitution and subsequently in terms of the
Constitution. It is important to note, however, that after the Constitution
was enacted but before the PAJA came into operation, the directly
enforceable right to administrative justice was not section 33, but rather the
rights contained in section 23(2)(b) of Schedule 6 of the Constitution.
When the PAJA was finally enacted in 2000, section 33 became
operative. Section 33 of the Constitution provides as follows:
(1) Everyone has the right to administrative action that
is lawful, reasonable and procedurally fair;
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given
written reasons.
(3) National legislation must be enacted to give effect to
these rights, and must –
(a) provide for the review of administrative action
by a court or, where appropriate, an independent
and impartial tribunal;
(b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
(c) promote an efficient administration.
In terms of the principle of subsidiarity, however, a litigant challenging the
validity of administrative action first has to turn to the provisions of the
PAJA and would not normally be able to rely directly on the Constitution.
The fact that the PAJA is now the primary mechanism for asserting
administrative justice rights was confirmed by the Constitutional Court in
its judgment in Minister of Health and Another v New Clicks South Africa
(Pty) Ltd and Others.16
In this case, Chaskalson CJ held that:
PAJA is the national legislation that was passed to give
effect to the rights contained in section 33. It was clearly
intended to be, and in substance is, a codification of these
rights. It was required to cover the field and it purports
to do so. A litigant cannot avoid the provisions of PAJA
by going behind it, and seeking to rely on s 33(1) of the
Constitution or the common law. That would defeat the
purpose of the Constitution in requiring the rights
contained in s 33 to be given effect by means of national
legislation.17
Despite Chaskalson CJ’s statement that ‘[a] litigatant cannot avoid the
provisions of PAJA by going behind it, and seeking to rely on s 33(1) of the
Constitution or the common law’, section 33 is not entirely irrelevant. This
is because section 33 still exists as a free-standing constitutional right and
can be relied on in certain exceptional cases,18 namely to challenge the
validity of the provisions of the PAJA itself; to challenge legislation that is
alleged to infringe the right to just administrative action; and, indirectly, to
interpret the provisions of the PAJA.19
In much the same way that section 33 is not entirely irrelevant, neither is
the common law. This is because the common law continues to have direct
application in cases where neither the Constitution nor the PAJA apply, for
example when a private association such as a club, a church or a political
party exercises disciplinary powers over its members.20 These sorts of
cases fall outside the PAJA’s scope because it applies only to the exercise of
public power and not to the exercise of private power.21 In addition, the
common law principles of administrative law, developed over many
centuries, have an indirect influence on administrative law in that they are
used as a source informing the interpretation of the various provisions of
both the PAJA and section 33.22

PAUSE FOR REFLECTION

The principle of subsidiarity

There are similarities between the relationship between
section 9 of the Constitution and the Promotion of Equality
and Prevention of Unfair Discrimination Act (PEPUDA),23
discussed in chapter 12, on the one hand, and the
relationship between section 33 and the provisions of the
PAJA, on the other. In both cases, the principle of
subsidiarity requires a litigant to rely on the legislation and
not on the constitutional right directly unless the litigant is
challenging the constitutionality of the subsidiary Act or
other legislation or using the Constitution to help interpret
the Act.
However, in the case of section 33 and the PAJA, the
situation is complicated further by the fact that before 1994,
administrative law was largely a part of the common law
developed by the judiciary. These common law principles
may assist courts to interpret the provisions of the PAJA.
There are no similar common law principles of equality that
predate the Constitution and it is therefore arguably less
complicated to interpret the PEPUDA than it is to interpret
the PAJA.
Whenever considering an administrative law issue, we
must first ask whether the PAJA is applicable and if so,
how it must be interpreted having regard to the Constitution
and to common law principles. If the PAJA is not applicable
and if section 33 is not invoked to challenge the
constitutionality of legislation, this does not mean that the
non-administrative exercise of public power cannot be
reviewed by a court. The courts can still review such
 exercises of power under the principle of legality as part of
a section 1 analysis.

15.2.3 Legislative, executive and judicial actions

Today, every exercise of public power is to some extent justiciable under
the Constitution even if it does not entail administrative action as defined
by the PAJA.24 However, the nature of the legal principles that apply to the
review of the exercise of public power will differ depending on the nature
of the public power. Administrative action – as defined in the PAJA – will
be reviewed under a different standard than the exercise of power that is not
classified as administrative action. It is therefore important to understand
what constitutes administrative action and to distinguish it from other forms
of the exercise of power.
In this regard, it is important to note that the exercise of public power
can be divided into three categories, namely legislative actions, executive
actions and judicial actions. This division is based on the separation of
powers. When the President assents to and signs an Act of Parliament, for
example, he or she is performing a legislative action.25 When the President
appoints the members of his or her Cabinet, however, he or she is not
performing a legislative action, but rather an executive action.26 Similarly,
when a judge imposes a sentence on a convicted person, he or she is
performing a judicial action.27 When a judge presides over the election of
the President, however, he or she is not performing a judicial action, but
rather a legislative action.28
Executive actions may also be divided into those executive actions that
are administrative actions and those executive actions that are not. When
the President exercises his or her power under the Constitution to appoint a
commission of enquiry, for example, he or she is performing an executive
action.29 When, however, the President exercises his or her powers under
the Commissions Act 30 to confer on a commission the power to summon
and question witnesses, he or she is performing an administrative action.31
 It is important to distinguish administrative actions from all other
exercises of public power. This is because section 33 of the Constitution
applies only to administrative actions and not to any of the other exercises
of public power listed above. Unfortunately, it is not always easy to draw
this distinction. This is because there is no clear line demarcating
administrative actions from all other exercises of public power. The
Constitutional Court, however, has identified certain criteria that must be
taken into account when making this decision. The Court identified some of
these criteria in its judgment in President of the Republic of South Africa
and Others v South African Rugby Football Union and Others (SARFU
III).32
In this case the President appointed a commission of enquiry in terms of
section 84(2)(f) of the Constitution to investigate the administrative and
financial affairs of the South African Rugby Football Union (SARFU).
SARFU then applied for an order setting aside the President’s decision on
the grounds that it was an administrative action and that in terms of the
right to administrative justice, he had to follow a fair procedure and give
SARFU a hearing before he made his decision to appoint the commission.
SARFU argued that the President did not give them a hearing before he
made his decision and his decision, therefore, was unconstitutional and
invalid. The Constitutional Court rejected this argument.
In arriving at its decision, the Constitutional Court stated that the key
issue it had to determine was whether the President’s decision to appoint a
commission of enquiry was, in fact, an administrative action. In this respect,
the Constitutional Court began by stating that the Constitution confers a
variety of functions on the executive, including the responsibility for
preparing and initiating legislation, for developing policy, for implementing
legislation and for implementing policy. The Court emphasised that the test
for determining whether conduct constitutes administrative action must not
focus on whether the action concerned is performed by a member of the
executive arm of government:
What matters is not so much the functionary as the
function. The question is whether the task itself is
administrative or not. … The focus of the enquiry as to
whether conduct is ‘administrative action’ is not on the
 arm of government to which the relevant actor belongs,
but on the nature of the power he or she is exercising.33
Where the President and Cabinet members in the national sphere (and
Premiers and Members of Executive Councils in the provincial sphere)
ensure the implementation of legislation, they are exercising an
administrative function which is justiciable. This will ordinarily constitute
administrative action within the meaning of section 33. However, Cabinet
members also have other constitutional responsibilities such as the
responsibility for developing policy and initiating legislation. When they do
so, they are not engaged in administrative action as encompassed by
section 33 of the Constitution.34 The closer the power is to the
implementation of legislation, the more likely it is to be classified as
administrative action. The closer the power is to the formulation of policy,
the less likely it is to be classified as administrative action. As the
Constitutional Court explained:
A series of considerations may be relevant to deciding on
which side of the line a particular action falls. The source
of the power, though not necessarily decisive, is a
relevant factor. So too is the nature of the power, its
subject matter, whether it involves the exercise of a
public duty, and how closely it is related on the one hand
to policy matters, which are not administrative, and on
the other to the implementation of legislation, which is.
While the subject matter of a power is not relevant to
determine whether constitutional review is appropriate,
it is relevant to determine whether the exercise of the
power constitutes administrative action for the purposes
of section 33. Difficult boundaries may have to be drawn
in deciding what should and what should not be
characterised as administrative action for the purposes
of section 33. These will need to be drawn carefully in the
light of the provisions of the Constitution and the overall
constitutional purpose of an efficient, equitable and
 ethical public administration. This can best be done on a
case by case basis.35
Applying these principles, the Constitutional Court concluded that the
appointment of a commission of enquiry was an aid to policy formulation
as it enables the President to obtain advice and information. It was not the
implementation of legislation but was the exercise of a constitutional power.
Hence, the decision to appoint the commission of enquiry was not
administrative action and was therefore not challengeable under the deemed
section 33 of the Constitution.36
Importantly, however, the Constitutional Court went on to state that
simply because the President’s conduct did not constitute administrative
action, this did not mean that there are no constraints on the President when
he or she exercises a public power. Instead, the Court stated further, the
Constitution imposes significant constraints on the President. Among these
are the requirements that the President must exercise his or her powers
personally, that any such exercise must be recorded in writing and signed,
and that the President must act in good faith and must not misconstrue his
or her powers. In addition, the President must not infringe any provision of
the Bill of Rights or the principle of legality which is implicit in the rule of
law.37
Following this judgment, the principle of legality has become an
alternative means of challenging any exercise of public power that cannot
be classified as administrative action. We have already touched on this
principle and its application to the exercise of power by the President in
chapter 5 of this book. To recap, in these judgments, the Constitutional
Court has held that the principle of legality provides that a functionary must
act within his or her power. This is known as the principle of authority. In
addition, any decision taken by the functionary must, from an objective
perspective, be rationally related to the purpose for which the power is
given. This is known as the principle of rationality.

15.2.4 The principle of legality

As discussed above, the principle of legality, which forms a part of the rule
of law, has become an alternative means of challenging any exercise of
public power that cannot be classified as administrative action. In
Democratic Alliance v eThekwini Municipality,38 the Supreme Court of
Appeal (SCA) set out the scope and ambit of the principle of legality. In this
case, the SCA held that:
[t]he fundamental principle, deriving from the rule of
law itself, is that the exercise of all public power, be it
legislative, executive or administrative, is only legitimate
when lawful (see eg Fedsure para 56). This tenet of
constitutional law which admits of no exception, has
become known as the principle of legality (see eg Cora
Hoexter Administrative Law in South Africa 117).
Moreover, the principle of legality not only requires that
the decision must satisfy all legal requirements, it also
means that the decision should not be arbitrary or
irrational (see eg Pharmaceutical Manufacturers of South
Africa and Another: In re Ex parte President of the
Republic of South Africa and Others 2000 ZACC 1 (2) SA
674 (CC) at para 85; Affordable Medicines Trust and
Others v Minister of Health and Another 2005 ZACC 3;
2006 (3) SA 247 (CC) at paras 73–75).39
It is important to distinguish between the rules applicable to the judicial
review of the exercise of public power under the principle of legality and
judicial review of the exercise of public power deemed to be administrative
action. As the rules set out above clearly indicate, the constraints imposed
on the exercise of public power by the principle of legality are not as
rigorous as those imposed on administrative actions by the right to
administrative justice. The most significant differences are that the right to
administrative justice provides that administrative actions must be
reasonable and procedurally fair, while the principle of legality simply
provides that all other exercises of public power must rational. In other
words, the principle of legality does not provide that all other exercises of
public power have to be reasonable or procedurally fair.
 There are a number of reasons why the constraints imposed on
legislative, executive and judicial actions by the principle of legality are not
nearly as rigorous as those imposed on administrative actions by the right to
administrative justice. One of these reasons is that legislative and executive
decisions are usually made by democratically elected representatives and
are based on political considerations. Given their political nature, the courts
are reluctant to overstep their authority by subjecting these decisions to
invasive standards of review.
In Democratic Alliance v President of South Africa and Others, for
example, the Constitutional Court held that:
[t[he rule that executive decisions may be set aside only if
they are irrational and may not ordinarily be set aside
because they are merely unreasonable or procedurally
unfair has been adopted precisely to ensure that the
principle of the separation of powers is respected and
given full effect. If executive decisions are too easily set
aside, the danger of courts crossing the boundaries into
the executive sphere would loom large. As O’Regan J
helpfully explained:
A central principle of the United States jurisprudence
has been to impose different levels of scrutiny on
different categories of legislative classification. The
most stringent level of scrutiny is reserved for
classifications based on race or nationality, or those
that invade fundamental rights. Such classifications
are almost inevitably considered to be a breach of the
Fourteenth Amendment. An intermediate level of
scrutiny is applied to classifications concerning gender
or socio-economic rights. The third level of scrutiny
requires merely that a classification be shown to have
a rational relationship to the legislative purpose.
It is evident that a rationality standard by its very nature
prescribes the lowest possible threshold for the validity
of executive decisions: it has been described by this
 Court as the ‘minimum threshold requirement
applicable to the exercise of all public power by members
of the Executive and other functionaries’. And the
rationale for this test is ‘to achieve a proper balance
between the role of the legislature on the one hand, and
the role of the courts on the other’.40

PAUSE FOR REFLECTION

Applying the principles of legality and rationality

The Constitutional Court accepted the fact that the
principle of legality does not provide that the exercise of
public power must follow a fair procedure in its judgment in
Masetlha v President of the Republic of South Africa and
Another.41 In this case, the President dismissed the
applicant who was the Head of the National Intelligence
Agency (NIA) after it was revealed that the NIA had been
unlawfully spying on a member of the ANC’s National
Executive Committee.
The applicant then applied for an order setting aside the
President’s decision. He based his application on a number
of grounds, one of which was that the President’s decision
to dismiss him was an administrative action. In terms of the
right to administrative justice, the President was obliged to
follow a fair procedure and give him a hearing before
making the decision to dismiss him. It was argued that as
the President had not done so, his decision was
unconstitutional and invalid.
The Constitutional Court rejected this argument. In
arriving at this decision, a majority of the Court stated that
the key issue it had to decide was whether the President’s
decision to dismiss the applicant was, in fact, an
administrative action.
 In this respect, the Constitutional Court held that the
power to appoint and to dismiss the Head of the NIA arose
out of the special legal relationship that existed between
the President and the Head of the NIA. The Constitution
conferred this special legal relationship on the President to
promote the security of the nation. Given these factors, the
power to dismiss the Head of the NIA could not be
classified as an administrative action.42
However, the Constitutional Court stated further, simply
because the President’s decision did not constitute
administrative action, this did not mean that he could
exercise his power in any way that he chose. This is
because every exercise of public power, including the
power to dismiss the Head of the NIA, is subject to the
principle of legality.43
While the principle of legality imposes an obligation on
the President to act in a rational way, it does not impose an
obligation on the President to follow a fair procedure. This
is because such a requirement would restrict the
President’s ability to act in an efficient and prompt manner.
The only requirement the President’s decision to dismiss
the applicant had to comply with, therefore, was the
principle of rationality.44
Although the Constitutional Court held in the Masethla
case that the principle of legality does not impose an
obligation on the President to follow a fair procedure and
give the affected parties a hearing when he or she
exercises a public power, it held in Albutt v Centre for the
Study of Violence and Reconciliation and Others 45 that
the principle of rationality may impose such an obligation
on the President, at least in certain exceptional cases.
In Albutt, the Constitutional Court set aside a decision of
the President, based on the recommendations of the
Pardon Reference Group, to pardon persons who did not
participate in the Truth and Reconciliation Commission
(TRC) process. The objective of the TRC process was to
achieve national unity and reconciliation. Given this
objective, the Court held that it was irrational and
unconstitutional to prevent the victims from making
representations to the Pardon Reference Group and on
this basis set aside the decisions to pardon.46
Apart from finding that the principle of rationality may
impose an obligation to follow a fair procedure, at least in
certain exceptional cases, in Democratic Alliance v
President of South Africa, the Constitutional Court also
held that the principle of rationality applies not only to the
merits of a decision made by the President, but also to the
process by which such a decision is made.47 This is
because, the Constitutional Court held further, the test for
rationality asks whether the means chosen to achieve a
particular purpose are rationally related to the purpose for
which the power was conferred and everything that is done
in the process of exercising that power forms a part of the
relevant ‘means’. In other words, the relevant means
includes not only the decision taken to achieve the
purpose, but also everything done in the process of taking
that decision.48
In addition, the Court went on to hold, when it comes to
determining whether the means (which encompass both
the decision itself and the decision-making process) are
rationally related to the ends, the courts may consider
whether the decision-maker failed to take relevant
considerations into account. If the decision-maker did fail to
do so and that failure rendered the entire process irrational,
then the decision itself will be irrational and thus
constitutionally invalid.49
In Democratic Alliance v President of South Africa the
Constitutional Court set aside a decision of the President to
 appoint Mr Menzi Simelane as the head of the National
Director of Public Prosecutions (NDPP) on the following
grounds: first, that a person could be appointed as the
NDPP only if he or she was ‘a fit and proper person’;
second, that a report issued by the Ginwala Commission of
Enquiry raised serious concerns about Mr Simelane’s
honesty, integrity and conscientiousness; third, that the
President had failed to take the concerns raised by the
report into account before he appointed Mr Simelane as
the NDPP; and, finally, that the President’s failure to take
the concerns raised by the report into account rendered the
entire decision-making process irrational.
As Price points out, the judgments in Albutt and
Democratic Alliance v President of South Africa appear to
be in tension with the judgment in Masethla. One way to
resolve this apparent tension, he argues, is to draw a
distinction between procedural fairness and procedural
rationality:
On this approach, while procedural fairness is not a general
requirement of the principle of legality (as established in Masethla
in the context of executive functions) procedural fairness is
sometimes required by the narrower principle of rationality,
depending on the “means” and “ends” under consideration (as
established in Albutt and confirmed in Democratic Alliance in the
context of presidential powers). This solution is attractive because
it creates a degree of flexibility: the executive and president need
not always act with procedural fairness, but must do so if it would
be irrational not to … On the other hand, one wonders whether
such a fine distinction – between procedural fairness and
procedural rationality – can be maintained. Professor Cora Hoexter
50 is surely correct to emphasise the “tremendous scope for the
further development of procedural fairness as a requirement of the
principle of legality and rationality” in future.51

No doubt the concept of legality is an evolving one and its full impact will
be incrementally felt. At present, the standard of review under legality is
that of rationality whereas the more exacting standard of reasonableness can
be used in terms of the PAJA when reviewing administrative action.
The current position, therefore, is that administrative action is reviewable
under the PAJA while the exercise of public power that cannot be classified
as administrative action can be reviewed under the principle of legality.
Table 15.1 below illustrates the differences between the principle of legality
and the right to just administrative action. We thus have parallel tracks to
review the exercise of public power. It may be argued that it would be more
effective if the definition of administrative action in the PAJA was either
omitted or broadened to cover some executive action. Litigants could then
rely on the PAJA for the review of decisions by members of the executive
even when these decisions constitute executive action and not
administrative action.
However, this argument may be problematic. Some exercises of public
powers by the executive are inherently more political than other decisions.
They may also require that the members of the executive have a wider
discretion when they exercise these powers. When the President wishes to
fire the head of the intelligence service, for example, or when he or she
wishes to appoint a commission of enquiry into a recent catastrophic event
such as the shooting of a large number of citizens by the police, it would be
impractical and would hinder effective government if the President was
required to follow all the requirements of fair process associated with
administrative action. It may take weeks or even months to comply with all
the fair procedures required by the PAJA while the executive decision may
require much swifter action to ensure good governance.
Table 15.1 The differences between the principle of legality and the
right to just administrative action

The exercise of The principle of The right to just The Promotion of

public power legality (section 1) administrative Administrative
must be: action (section 33) Justice Act

Lawful Yes Yes Yes

(section 6(2)(a),
(b), (d), (e) and (i))

Rational Yes Yes Yes

 (section 6(2)(f))

Reasonable No Yes Yes

(section 6(2)(h))

Procedurally fair No Yes Yes

(section 3)

Written reasons Yes Yes Yes

must be given (section 5)

15.2.5 The main provisions of the PAJA

15.2.5.1 What constitutes administrative action

As we have seen, a litigant would normally have to rely on the provisions of
the PAJA when he or she wishes to challenge the validity of administrative
actions. The PAJA is the national legislation enacted to give effect to
section 33 of the Constitution. The first step in determining whether the
PAJA will apply is to determine whether the exercise of power qualifies as
administrative action as defined in the PAJA.
Section 1 of the PAJA defines administrative action in an overly
complicated manner and the layers of qualification have presented some
difficulties in interpreting this section and reconciling it with other sections
in the Act. Section 1 distinguishes between administrative decisions made
by an organ of state and administrative decisions made by a natural or
juristic person.
In so far as organs of state are concerned, section 1 of the PAJA provides
that:
administrative action means any decision taken, or any
failure to take a decision, by an organ of state, when
exercising a power in terms of the Constitution or a
provincial constitution, or exercising a public power or
performing a public function in terms of any legislation,
which adversely affects the rights of any person and
which has a direct, external legal effect, but does not
 include [the powers and functions listed in paragraphs
(aa) to (ii) of the section].52
This definition may be broken down into the following components:
• a decision taken or any failure to take a decision
• made by an organ of state
• when exercising a public power or performing a public function in terms
of the Constitution, a provincial constitution or any legislation
• which adversely affects rights
• which has a direct external legal effect
• which has not been specifically excluded from the definition.
In so far as natural and juristic persons are concerned, section 1 of the PAJA
provides that:
administrative action means any decision taken, or any
failure to take a decision, by a natural or juristic person,
other than an organ of state, when exercising a public
power or performing a public function in terms of an
empowering provision, which adversely affects the rights
of any person and which has a direct, external legal
effect, but does not include [the powers and functions
listed in paragraphs (aa) to (ii) of the section].
This definition may be broken down into the following components:
• a decision taken or any failure to take a decision
• made by a natural or juristic person
• when exercising a public power or performing a public function in terms
of an empowering provision
• which adversely affects rights
• which has a direct external legal effect
• which has not been specifically excluded from the definition.
Thus, it is not the description of the decision maker but the nature of the
decision that is the critical starting point in determining whether the
decision constitutes administrative action under the PAJA and can thus be
reviewed.53 A decision made by a juristic person is as susceptible to a
challenge under the PAJA as a decision of an organ of state. The issue is
whether the decision is of an administrative nature and involves the exercise
of a public power or the performance of a public function. A decision by a
private institution not exercising a public power or performing a public
function in terms of ‘an empowering provision’ would not constitute
administrative action.
However, the notion of an ‘empowering provision’ is broadly defined in
the PAJA to mean a ‘law, a rule of common law, customary law, or an
agreement, instrument or other document in terms of which administrative
action was purportedly taken’.54 This is a broad definition and means that
the PAJA potentially allows the review of many different kinds of decisions
taken by private institutions. For example, if a municipality invites an
accounting and auditing company to run the process of inviting and
awarding tenders for the supply of services to it, the decision to award the
tender is an exercise of public power and will be administrative action even
though the decision was taken by a private company and not by an organ of
state.55
The Constitution defines an organ of state as any department of state or
administration in the national, provincial or local sphere of governance.56
This refers to all the various departments of government such as the
department of housing, education and social development. The definition
goes further and includes any other functionary or institution exercising a
power or performing a function in terms of the Constitution, a provincial
constitution or those exercising a public power or performing a public
function in term of legislation.
Thus, it is likely that a body such as the South African Human Rights
Commission, which exercises power in terms of the Constitution, will be
regarded as an organ of state. In Independent Electoral Commission v
Langeberg Municipality, the Constitutional Court held that the Independent
Electoral Commission was exercising a public power or performing a
public function in terms of the Constitution and was hence an organ of
state.57 However, it was not part of government and was therefore not
obliged to follow the provisions regarding co-operative governance which
are binding on government and intergovernmental bodies.58 In addition, a
whole plethora of regulatory bodies such as the Law Society and the Health
Professionals Council will be deemed organs of state as they exercise public
power or perform public functions in terms of legislation.
The definition of administrative action in section 1 of the PAJA gives
rise to a number of difficult questions. One of the most controversial of
these is what is meant by the requirement that administrative action must
have a ‘direct external legal effect’. Another is what is meant by materially
and adversely affects rights. The Constitutional Court discussed these issues
in its judgment in Joseph and Others v City of Johannesburg and Others.59
In this case, the Court laid down three important principles:
• First, the phrase, ‘direct external legal effect’, in section 1 of the PAJA
does not play a particularly important role. This is because a finding that
a right has been materially and adversely affected means that there has
been a direct, external affect.60
• Second, the phrase, ‘materially and adversely affected’, in section 3 of
the PAJA does not mean that the right in question has to be breached or
infringed. Instead, it simply means that the right has to be affected in a
significant way.61
• Third, the term, ‘right’, in section 3 of the PAJA does not refer only to
common law rights, but also to constitutional and statutory rights.62
In this case the applicants rented apartments in a building which was owned
by a certain Mr Nel and which was supplied with electricity by the City of
Johannesburg. As a part of their lease agreements, each applicant paid the
amount he or she owed for electricity to Mr Nel. Unfortunately, Mr Nel
failed to pay this money over to the City and the City terminated the supply
of electricity to the building without first notifying the applicants.
After the City had disconnected the supply of electricity to the building,
the applicants applied for an order setting aside the City’s decision. The
applicants based their application on the following grounds:
• The City’s decision was an administrative action.
• This administrative action materially and adversely affected their rights.
• In terms of section 3 of the PAJA, the City should have followed a fair
procedure and given them notice before it terminated the supply of
 electricity even though there was no contract and therefore no
contractual rights between the applicants and the City.
Section 3 of the PAJA states that ‘[a]dministrative action which materially
and adversely affects the rights or legitimate expectations of any person
must be procedurally fair’. The key questions the Constitutional Court had
to answer, therefore, were as follows:
• First, was the City’s decision to terminate the supply of electricity an
administrative action?
• Second, if the decision was an administrative action, did the City’s
decision materially and adversely affect any of the applicants’ rights?
• Third, if the decision did materially and adversely affect any of the
applicants’ rights, was the City required to give the applicants notice
before it terminated the supply?
In so far as the first issue was concerned, the Constitutional Court began its
analysis by stating that the City had argued that its decision could not be
classified as an administrative action because it did not have a ‘direct,
external effect’. To determine whether the City’s decision was an
administrative action, therefore, the Court had to determine what is meant
by the phrase, ‘direct, external effect’. This phrase, according to the
Constitutional Court, must be interpreted broadly and ‘serves to emphasise
that administrative action impacts directly and immediately on
individuals’.63 This means that:
a finding that the rights of the applicants were materially
and adversely affected for the purposes of section 3 of
PAJA would necessarily imply that the decision had a
‘direct, external legal effect’ on the applicants.
Conversely, a finding that the rights of the applicants
were not materially and adversely affected would have
the result that section 3 of PAJA would not apply.64
After finding that the City’s decision would have a direct, external effect if
it materially and adversely affected any of the applicants’ rights, the
Constitutional Court turned to consider the second issue, namely whether
the City’s decision did, in fact, materially and adversely affect any of the
applicants’ rights.
In so far as the second issue was concerned, the Constitutional Court
began by stating that the City had argued that while its decision may have
materially and adversely affected Mr Nel’s rights, it did not materially and
adversely affect any of the applicants’ rights because there was no contract
between the City and the applicants. To determine whether the City’s
decision materially and adversely affected the applicants’ rights, therefore,
the Court had to determine whether the applicants had any rights they could
enforce against the City.
The Constitutional Court stated that it was true that the applicants did not
have any contractual rights which they could enforce against the City.
However, a careful examination of the Constitution and the Local
Government: Municipal Systems Act 65 showed that every municipality
was obliged to provide basic services to their inhabitants irrespective of
whether or not they had a contractual relationship with the relevant service
provider. In addition, one of the most important basic services every
municipality was obliged to provide was electricity.66
The key question that then arose, the Constitutional Court stated further,
was whether the constitutional and statutory right to receive electricity as a
basic municipal service was the kind of right referred to in section 3 of the
PAJA. Adopting a purposive approach, the Constitutional Court held that it
was. This is because the rights referred to in section 3 of the PAJA ‘include
not only vested, private law rights but also legal entitlements that have their
basis in the constitutional and statutory obligations of government’:
In my view, proper regard to the import of the right to
administrative justice in our constitutional democracy
confirms the need for an interpretation of rights under
section 3(1) of PAJA that makes clear that the notion of
‘rights’ includes not only vested, private law rights but
also legal entitlements that have their basis in the
constitutional and statutory obligations of government.
The Preamble of PAJA gives expression to the role of
administrative justice and provides that the objectives of
 PAJA are, inter alia, to ‘promote an efficient
administration and good governance’ and to ‘create a
culture of accountability, openness and transparency in
the public administration or in the exercise of public
power or the performance of a public function’. These
objectives give expression to the founding values in
section 1 of the Constitution, namely that South Africa is
founded on the rule of law and on principles of
democratic government to ensure accountability,
responsiveness and openness.67
After setting out these principles, the Constitutional Court turned to apply
them to the facts. In this respect, the Court found that the applicants had a
constitutional and statutory right to receive electricity as a basic municipal
service from the City. This constitutional and statutory right was the sort of
right referred to in section 3 of the PAJA. When the City terminated the
supply of electricity to the building, this action materially and adversely
affected the constitutional and statutory right of the applicants living in it.
Therefore, the City should have followed a fair procedure.68
In arriving at this decision, the Constitutional Court also stated that the
phrase, ‘materially and adversely affects’ a right in section 3(1) of the
PAJA, does not mean that a fair procedure has to be followed only when a
right is breached by the administrative action in question. Instead, it means
that a fair procedure must be followed whenever a right is affected in a
significant and not a trivial way by the administrative action in question.69
Having found that the City should have followed a fair procedure before
it terminated the supply of electricity, the Constitutional Court turned to
consider the third issue, namely whether the City was required to give the
applicants notice before it terminated the supply of electricity to their
building. In so far as this issue was concerned, the Constitutional Court
began by stating that the applicants had argued that in terms of section 3(2)
of the PAJA, the City was required to provide them with adequate notice
before it terminated the supply of electricity. In addition, they had argued
further, this requirement could be satisfied simply by posting a written
notice in a prominent place in the building they occupied and that such a
notice would not place an undue burden on the City.70
The Constitutional Court accepted this argument and held that the City
had to provide the applicants with a pre-termination notice. This notice had
to contain all relevant information including the date and time of the
proposed termination and the place where the affected parties could
challenge the termination. Approximately 14 days’ pre-termination notice
would be adequate and appropriate.71
Given that the City had failed to do so, the Constitutional Court
concluded that the termination of the electricity supply was unlawful and
ordered the City to reconnect the electricity supply to the building the
applicants occupied. The provisions of the PAJA were therefore
successfully invoked to have a decision by the City Council set aside that
would have had serious effects on the economic and social well-being of the
inhabitants of the building.

PAUSE FOR REFLECTION

Using other rights apart from social and

economic rights to advance the interests of the
marginalised and vulnerable
In the last chapter of this book, we will discuss the Court’s
role in the realisation of social and economic rights in more
detail. However, what the Joseph judgment illustrates is
that other rights apart from social and economic rights –
including the right to fair administrative action guaranteed
in section 33 and given effect to by the PAJA – can be
used to advance the social and economic interests of the
marginalised and vulnerable in society.

15.2.5.2 The key obligations imposed by the PAJA

15.2.5.2.1 Introduction
After an applicant has managed to show that the exercise of public power in
question falls into the definition of an administrative action, he or she is
entitled to claim the administrative rights set out in the PAJA. Among the
most important of these administrative rights are the following:
• the right to lawful administrative action
• the right to reasonable administrative action
• the right to procedural fairness
• the right to be given reasons for an administrative decision.
In so far as these rights are concerned, however, it is important to note that
section 2 of the PAJA provides that the Minister of Justice may, by notice in
the Government Gazette, if it is reasonable and justifiable in the
circumstances, exempt an administrative action or a group or class of
administrative actions from either of the first two rights. Parliament must
approve such an exemption before it is published in the Gazette.
The Minister’s power to exempt administrative actions from the first two
rights is therefore subject to two constraints:
• First, the exemption must be reasonable and justifiable.
• Second, Parliament must approve the exemption.

15.2.5.2.2 Lawful administrative action

a) Introduction
Lawfulness lies at the very heart of just administrative action and provides
that an administrator – somebody who exercises public power that amounts
to administrative action – must act in terms of and in accordance with the
terms of an empowering statute. The right to lawful administrative justice,
therefore, prohibits administrators from taking decisions that are not
authorised by law or from ignoring any statutory requirements that are
attached to the exercise of the power in question. An administrator who
fails to comply with these requirements, therefore, is said to be acting ultra
vires.72
The right to lawful administrative action, however, goes beyond simply
providing that an administrator must act in terms of and in accordance with
the terms of an empowering statute and includes a number of other grounds
of review. Where an administrator acts, for example, in bad faith, for an
ulterior purpose, takes into account irrelevant considerations or fails to take
into account relevant considerations, or makes an error of law, he or she
acts beyond his or her powers.73
These different grounds of review may be divided into three categories:
• the requirement of authority, which provides that administrators may
only exercise the powers that have been conferred on them by the law
and may not unlawfully delegate them
• the concept of jurisdiction, which provides that administrators must
remain within the procedural and substantive bounds of their power and
may not misconstrue them
• the umbrella ground of abuse of discretion.74
Many, if not most, of the different grounds of review that fall under each of
these categories have been included in section 6(2) of the PAJA.
Section 6(2) provides as follows:
(2) A court or tribunal has the power to judicially
review an administrative action if:
(a) the administrator who took it:
(i) was not authorised to do so by the
empowering provision;
(ii) acted under a delegation of power which
was not authorised by the empowering
provision; or
(iii) was biased or reasonably suspected of
bias;
(b) a mandatory and material procedure or
condition prescribed by an empowering
provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error
of law;
(e) the action was taken:
(i) for a reason not authorised by the
empowering provision;
(ii) for an ulterior purpose or motive;
 (iii) because irrelevant considerations were
taken into account or relevant
considerations were not considered;
(iv) because of the unauthorised or
unwarranted dictates of another person
or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself:
(i) contravenes a law or is not authorised by
the empowering provision; or
(ii) is not rationally connected to:
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering
provision;
(cc) the information before the
administrator; or
(dd) the reasons given for it by the
administrator;
(g) the action concerned consists of a failure to take
a decision;
(h) the exercise of the power or the performance of
the function authorised by the empowering
provision, in pursuance of which the
administrative action was purportedly taken, is
so unreasonable that no reasonable person could
have so exercised the power or performed the
function; or
(i) the action is otherwise unconstitutional or
unlawful.
b) The requirement of authority
As mentioned above, the requirement of authority provides that
administrators may only exercise the powers that have been conferred on
them by the law and may not unlawfully delegate them. This requirement is
given expression in section 6(2)(a) of the PAJA which focuses on the
administrator who took the decision. The requirement states that a decision
may be reviewed and set aside if the person exercising the power lacked the
authority to do so, or had power delegated to him or her in an unauthorised
manner, or was biased or was reasonably suspected of being biased.
In SARFU III, the Constitutional Court pointed out that the
circumstances in which a functionary has unlawfully abdicated the power
vested in him or her may be divided into three categories:
• first, where the functionary unlawfully delegates the power to someone
else
• second, where the functionary acts on the instructions of someone else
• third, where the functionary refers the decision to someone else.75
In SARFU III, the Constitutional Court explained the three categories of
abdication as occurring:
where a functionary in whom the power has been vested
delegates that power to someone else. Whether such
delegation is valid depends upon whether the recipient of
the power is lawfully entitled to delegate that power to
someone else. There can be no doubt that when the
Constitution vests power to appoint commissions of
inquiry in the President, the President may not delegate
that authority to a third party. The President himself
must exercise that power. Any delegation to a third party
would be invalid. The second category referred to by
Baxter deals with cases when a functionary vested with a
power does not of his or her own accord decide to
exercise the power, but does so on the instructions of
another. The third category, passing the buck,
contemplates a situation in which a functionary may
refer the decision to someone else.76
If there is an unlawful abdication of power, the decision will be set aside on
review. However, note that section 238(a) of the Constitution contemplates
the inevitability that powers will be delegated as a necessity for the ‘daily
practice of governance’, stating that:
 An executive organ of state in any sphere of government
may –
delegate any power or function that is to be exercised
or performed in terms of legislation to any other
executive organ of state, provided the delegation is
consistent with the legislation in terms of which the
power is exercised or the function is performed.
In each case a court will have to determine whether a delegation is lawful or
unlawful. In the case of AAA Investments (Proprietary) Limited v Micro
Finance Regulatory Council and Another, the Constitutional Court set out
some criteria to determine whether a delegation is acceptable, stating that:
Criteria relevant to determining whether a delegation of
a delegated power is acceptable include the following:
the character of the original delegation; the extent of the
delegation of the delegated power; the extent to which
the original delegee continues to review the exercise of
the delegated power; considerations of practicality and
effectiveness; and the identity of the institutions or
persons by whom and to whom power is delegated.77
The exercise of an administrative power in terms of delegated authority will
only be impermissible and unlawful if that delegation does not comply with
the criteria set out above.

PAUSE FOR REFLECTION

Determining whether an administrator has

unlawfully abdicated his or her power to make a
decision
It will not always be easy to determine whether an
administrator has unlawfully abdicated his or her power to
make a decision. In a modern state, an administrator may
 rely on other functionaries to assist him or her to make a
sound decision. When the decision of an administrator,
who is authorised to make a decision, is informed by the
advice of others, this will not necessarily be unlawful. In
complex matters of a technical nature the administrator
may not necessarily have the requisite expertise to make a
proper decision. In such cases, it will not necessarily be
unlawful for that administrator to take advice from others.
The situation will be different where the authorised
administrator fails to exercise his or her discretion at all
and, instead, rubberstamps the decision of somebody who
is not authorised to make the decision at all. For example,
say a departmental official is authorised to make a decision
on whether or not to grant a fishing licence. The decision is
based, inter alia, on a technical assessment of whether the
granting of such a licence would threaten the sustainability
of fishing in a particular area. If that departmental official is
not a marine biologist with expertise about the effects of
fishing in an area on the fish stock in that area, there would
arguably be nothing wrong with that official consulting a
marine biologist for advice. However, the situation will be
different when, say, that official grants a fishing licence to
someone after having been instructed to do so by a
politician who is not authorised to make a decision on the
granting of fishing licences.

Apart from the points set out above, the requirement of authority also
provides that the administrator must comply with any statutory
requirements or preconditions attached to the exercise of the power in
question. It is not surprising, therefore, that section 6(2)(b) of the PAJA
allows for administrative action to be reviewed and set aside if there is no
compliance with a mandatory or material procedure or condition.
c) The concept of jurisdiction
An administrator is required to remain within the substantive and
procedural bounds of his or her powers and may not misconstrue these. If
he or she fails to do so, the decision could be reviewed on the basis that he
or she lacks jurisdiction to exercise that power. The concept of jurisdiction
may be divided into two separate elements, namely a material mistake of
law – where the legal provision on which the decision is based is wrongly
interpreted – and, more controversially, a material mistake of fact. A
material mistake of law occurs when an administrator misinterprets the
law. As a result of this misinterpretation, the administrator misunderstands
the nature of his or her power and, therefore, exercises it improperly.78
This ground of review is referred to in section 6(2)(d) of the PAJA which
simply states that a court may review an administrative action if the action
was materially influenced by an error of law. In so far as this provision is
concerned, it is important to note that it is only decisions based on material
errors of law that will be set aside. Materiality has been defined as follows:
If, for instance, the facts found by the tribunal are such
as to justify its decision even on a correct interpretation
of the statutory criterion, then normally (ie: in the
absence of some other review ground) there would be no
ground for interference.79
Thus, if the same conclusion would have been reached had the decision
maker not erred, the decision will not be set aside as the error is not
material.
A material mistake of fact occurs when an administrator fails to follow
a prescribed procedure or makes a decision in breach of a substantive
condition the administrator was required to fulfil before making the
decision. A material mistake of fact can enable an administrator to inflate
his or her jurisdiction by accumulating powers beyond those that the
empowering legislation confers on him or her. Although this ground is not
explicitly referred to in the PAJA, it is recognised as a ground for judicial
review.80
d) Abuse of discretion
This ground – which tends to overlap with the requirement of
reasonableness – is dealt with in some detail in the PAJA. Section 6(2)(e)
thus provides that administrative action may be reviewed on the grounds
that it was taken:
• for a reason not authorised by the empowering provision
• for an ulterior purpose
• because irrelevant considerations were taken into account and relevant
considerations were not
• because of the unauthorised or unwarranted dictates of another person or
body
• in bad faith or arbitrarily or capriciously.
When a power is granted for one purpose, it cannot be exercised for any
ulterior purpose or objective. As the Constitutional Court held in the
Pharmaceutical Manufacturers case:
Powers are not conferred in the abstract. They are
intended to serve a particular purpose. That purpose can
be discerned from the legislation that is the source of the
power and this ordinarily places limits upon the manner
in which it is exercised. If those limits are transgressed a
court is entitled to intervene and set aside the decision.81
An example of a power being exercised for a purpose for which it was not
granted can be found in the pre-constitutional judgment of Van Eck NO and
Van Rensburg NO v Etna Stores.82 This case dealt with wartime regulations
permitting the administrator to seize food in order to obtain evidence of
suspected violations of the regulations. The administrator acting in terms of
these regulations seized bags of rice as part of a food distribution scheme
and not to obtain evidence of contravention of the regulations. As the
administrator had acted for an improper purpose, the decision was set aside.

15.2.5.2.3 Reasonable administrative action

The notion that an administrative decision can be reviewed and set aside on
the basis that the decision was not reasonable, remains a contentious one in
our law.83 This is so because administrative review is not normally seen as
focusing on the correctness or wisdom of an administrative decision. Given
the constraints placed on courts by the separation of powers doctrine, it is
generally thought that it would not normally be appropriate for a court to
review and set aside an administrative decision merely because the court
believes the decision was not the best possible decision to be made in the
circumstances. Administrative decisions deal with the review of decisions,
not with the appeal of such decisions on the merits of the decision.
Reasonableness review is controversial because it draws the courts into the
awkward space between review and appeal by necessitating an assessment
of the merits of an administrative decision. This is something that is usually
associated with the appeal of a decision, not with its review in terms of
administrative law grounds.84
Nevertheless, reasonableness review does form part of South African
law. In the pre-constitutional era, the Appellate Division in Johannesburg
Stock Exchange and Another v Witwatersrand Nigel Ltd and Another held
that in terms of the common law, an administrative decision could be
reviewed and set aside if ‘the decision … was so grossly unreasonable as to
warrant the inference that he had failed to apply his mind to the matter in
the manner aforestated’.85 However, the pre-constitutional jurisprudence
failed to establish reasonableness as a free-standing ground of review.86
Unreasonableness was only considered to be a ground of review to the
extent that it could be shown that a decision was so unreasonable as to lead
to a conclusion that the official had failed to apply his or her mind to the
decision.87
Section 33(1) of the Constitution now states that everyone has the right
to administrative action, inter alia, that is ‘lawful, reasonable and
procedurally fair’. The reasonableness aspect is purportedly given effect to
by section 6(2)(h) of the PAJA which states that the court can review an
administrative action if:
the exercise of the power or the performance of the
function authorised by the empowering provision, in
pursuance of which the administrative action was
purportedly taken, is so unreasonable that no reasonable
 person could have so exercised the power or performed
the function.
This seems like a rather clumsy formulation. However, in Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 88
the Constitutional Court interpreted this provision in the light of section 33
of the Constitution. The Court said that even if it may be thought that the
language of section 6(2)(h) of the PAJA, if taken literally, might set a
standard which would rarely if ever lead to a finding that a decision was
unreasonable, ‘that is not the proper constitutional meaning’ of the
subsection. Instead, section 6(2)(h) should be ‘understood to require a
simple test, namely, that an administrative decision will be reviewable if …
it is one that a reasonable decision-maker could not reach’.89
What will constitute a reasonable decision will depend on
the circumstances of each case, much as what will
constitute a fair procedure will depend on the
circumstances of each case. Factors relevant to
determining whether a decision is reasonable or not will
include the nature of the decision, the identity and
expertise of the decision-maker, the range of factors
relevant to the decision, the reasons given for the
decision, the nature of the competing interests involved
and the impact of the decision on the lives and well-being
of those affected. Although the review functions of the
court now have a substantive as well as a procedural
ingredient, the distinction between appeals and reviews
continues to be significant. The court should take care
not to usurp the functions of administrative agencies. Its
task is to ensure that the decisions taken by
administrative agencies fall within the bounds of
reasonableness as required by the Constitution.90

PAUSE FOR REFLECTION

 A substantive element in the administrative
review process
As the Constitutional Court admitted in Bato Star Fishing,
the fact that an administrative decision can be reviewed
and set aside on the basis of reasonableness infuses a
substantive element into the administrative review process.
However, it is important to note that this does not mean
that the Court can set aside an administrative decision
because it believes that the decision is unwise or wrong.
Administrative review must not be confused with an appeal
that attacks the merits of a decision on the basis that it
infringes one of the other rights in the Constitution.
The distinction between these two types of review can
be explained with the help of an example. When an
administrative body decides to refuse to grant permission
to an organisation to hold a protest march, this decision
can be attacked on substantive grounds by invoking the
right to freedom of assembly guaranteed by section 17 of
the Bill of Rights. This appeal of the decision will not be
based on administrative law. However, in principle, the
administrative decision itself could also be reviewed in
terms of section 6(2)(h) of the PAJA on the basis that the
decision was unreasonable because no reasonable
decision maker could have made the decision.

15.2.5.2.4 Procedurally fair administrative action

a) Introduction
The requirement that an administrative decision must be procedurally fair
places context at the heart of the enquiry. This means that a determination
on whether the administrative decision was procedurally fair will depend on
the facts of the individual case. A court must therefore interpret and apply
the relevant provisions of the PAJA with reference to the factual matrix
within which the administrative decision was made. The right to procedural
fairness in administrative decisions is set out in section 3 of the PAJA.91
Section 3 provides as follows:
(1) Administrative action which materially and
adversely affects the rights or legitimate expectations
of any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the
circumstances of each case.
(b) In order to give effect to the right to
procedurally fair administrative action, an
administrator, subject to subsection (4), must
give a person referred to in subsection (1):
(i) adequate notice of the nature and
purpose of the proposed administrative
action;
(ii) a reasonable opportunity to make
representations;
(iii) a clear statement of the administrative
action;
(iv) adequate notice of any right of review or
internal appeal, where applicable; and
(v) adequate notice of the right to request
reasons in terms of section 5.
(3) In order to give effect to the right to procedurally
fair administrative action, an administrator may, in
his or her or its discretion, also give a person
referred to in subsection (1) an opportunity to:
(a) obtain assistance and, in serious or complex
cases, legal representation;
(b) present and dispute information and arguments;
and
(c) appear in person.
(4) (a) If it is reasonable and justifiable in the
circumstances, an administrator may depart
from any of the requirements referred to in
subsection (2).
 (b) In determining whether a departure as
contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into
account all relevant factors, including:
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need
to take, the administrative action;
(iii) the likely effect of the administrative
action;
(iv) the urgency of taking the administrative
action or the urgency of the matter; and
(v) the need to promote an efficient
administration and good governance.
(5) Where an administrator is empowered by an
empowering provision to follow a procedure which is
fair but different from the provisions of subsection
(2), the administrator must act in accordance with
that different procedure.
Unfortunately, the formulation of section 3 is not a model of clarity. It is
necessary to understand the complex interplay of its various subsections to
determine its scope and meaning. It is also necessary to reconcile the
section with the definition of administrative action set out in section 1 of the
Act.92 As the provisions set out above indicate, section 3 is divided into
five subsections. Subsection 3(1) lists the requirements that must be met
before the right to procedural fairness can be asserted. Subsection 3(2)
reaffirms the flexibility of the concept and identifies five requirements as
being core features of procedural fairness. Subsection 3(3) recognises that
in certain circumstances a trial-type hearing may be required for the process
to be procedurally fair. Subsection 3(4) allows the administrator to depart
from the requirement of subsection 3(2) if it is reasonable and justifiable to
do so and lists the factors that need to be considered. Finally,
subsection 3(5) is an enabling section which allows an administrator to
follow an alternative procedure provided it is fair. Before turning to
consider these subsections, however, it will be helpful to discuss briefly
what is meant by the concept of procedural fairness.
b) The concept of procedural fairness
The concept of procedural fairness is inherently flexible and its content
depends on the circumstances to which it is applied. Fairness of process –
which we discuss here – must be distinguished from the correctness of the
outcome. When we talk of procedural fairness we are not, in the first
instance, focusing on the outcome, but rather on the quality of the process
which led to the outcome. As De Smith, Woolf and Jowell point out, the
concept ‘ranges from mere consultation at the lower level, upward through
an entitlement to make written representation, to make oral representations,
to a fully-fledged hearing at the other extreme with most of the
characteristics of a judicial trial’.93
What is required in any particular case is incapable of definition in
abstract terms. As Lord Bridge put it:
the so called rules of natural justice are not engraved on
tablets of stone. To use the phrase which better expresses
the underlying concept, what the requirement of fairness
demands when anybody, domestic, administrative or
judicial, has to make a decision which will affect the
rights of individuals depends on the character of the
decision-making body, the kind of decision it has to make
and the statutory or other framework in which it
operates.94
Because of the flexibility of the concept, the administrator has to make a
determination of what is procedurally fair in the specific circumstances. It is
not necessary in every case to afford a person a trial-type hearing before
making a decision that affects that person. In some instances, consultation
or the opportunity to make written representations will suffice. In Doody v
Secretary of State for the Home Department and other Appeals,95 the
House of Lords accurately captured the legal principles regarding
procedural fairness.96 These principles are as follows:
• Where an Act of Parliament confers an administrative power, there is a
presumption that it will be exercised in a manner which is fair in all
circumstances.
• The standards of fairness are not immutable. They may change with the
passage of time, both in general and in their application to decisions of a
particular type.
• The principles of fairness are not applied by rote and are not identical in
every situation. What fairness demands is dependent on the context of
the decision and this is to be taken into account in all its aspects.
• An essential feature of the context is the statute which creates the
discretion as regards both its language and the shape of the legal and
administrative system within which the decision is taken.
• Fairness often requires that a person who may be adversely affected by
the decision has an opportunity to make representations on his or her
own behalf either before the decision is taken with a view to producing a
favourable result or after it is taken with a view to procuring its
modification, or both.
• Since the person affected usually cannot make worthwhile
representations without knowing what factors may weigh against his or
her interests, fairness often requires that the person is informed of the
gist of the case which he or she has to answer.
One of the major concerns about having multiple processes is that it may
impede effective and expeditious decision making. If a regulator has to
afford three sets of hearings to parties at various stages in the decision-
making process, the taking of the ultimate decision will be delayed. This
delay may adversely affect the implementation of policy and cause
frustration.

PAUSE FOR REFLECTION

The tension between strict enforcement of fair

procedures and the efficient running of the
country
O’Regan J highlighted the flexible nature of the concept of
procedural fairness in her judgment in Premier, Province of
Mpumalanga and Another v Executive Committee of the
Association of Governing Bodies of State Aided Schools:
Eastern Transvaal.97
In this case, the Member of the Executive Council (MEC)
responsible for education in Mpumalanga decided on
31 August 1995 that bursaries paid to former state-aided
schools (so-called Model C schools) to assist poor
students with their fees, transport and accommodation
costs would be terminated with effect from 1 July 1995.
After the MEC had made this decision, the respondent
applied for an order setting aside the MEC’s decision on
the ground that it violated the right to procedural fairness
guaranteed in section 24(b) of the interim Constitution.
Section 24(b) provides that ‘[e]very person shall have the
right to procedurally fair administrative action where any of
his or her rights or legitimate expectations are affected or
threatened’.
In determining whether the MEC had followed a fair
procedure before he decided to terminate bursaries, the
Constitutional Court pointed out that while section 24(b) of
the interim Constitution required that administrative action
which affected or threatened legitimate expectations must
be procedurally fair, this did not mean that a hearing would
be required in all circumstances. ‘It is well-established in
our legal system and in others that what will constitute
fairness in a particular case will depend on the
circumstances of the case.’ 98 The Court pointed out
further that:
[i]n determining what constitutes procedural fairness in a given
case, a court should be slow to impose obligations upon
government which will inhibit its ability to make and implement
policy effectively (a principle well recognised in our common law
and that of other countries). As a young democracy facing
immense challenges of transformation, we cannot deny the
importance of the need to ensure the ability of the executive to act
efficiently and promptly. On the other hand, to permit the
implementation of retroactive decisions without, for example,
affording parties an effective opportunity to make representations
 would flout another important principle, that of procedural fairness.
… Citizens are entitled to expect that government policy will
ordinarily not be altered in ways which would threaten or harm their
rights or legitimate expectations without their being given
reasonable notice of the proposed change or an opportunity to
make representations to the decision-maker.99

This passage is significant for two reasons. First, it affirms

that the common law notion of procedural fairness is now
essentially encapsulated by section 33 of the Constitution
(in this case, section 24 of the interim Constitution) which is
given effect to by section 3 of the PAJA. Second, it affirms
that there will sometimes be a tension between strict
enforcement of fair procedures and the efficient running of
the country. As is so often the case in the adjudication of
constitutional disputes, the broader context will be pivotal
in deciding whether a hearing is required or not. In this
case, the Court found that the MEC had neither given the
recipients reasonable notice of the impending termination
nor were they given an opportunity to make
representations to the decision maker. In the
circumstances of this case, this amounted to a failure of
procedural fairness and a violation of constitutional rights.
The Court ordered the provincial government to pay the
subsidies for that year.

c) Rights and legitimate expectations

In terms of section 3 of the PAJA, a person can claim the right to be treated
procedurally fairly if either his or her rights or his or her legitimate
expectations are materially and adversely affected. It is consequently
important to understand what is meant by the concept of a right and the
concept of a legitimate expectation. There seems to be a conflict between
the definition of administrative action set out in section 1 which applies to
action that adversely affects rights and section 3 which applies to
administrative action that adversely affects rights or legitimate
expectations.100 Can the conflict between these two provisions be solved?
 As we have already seen, the Constitutional Court interpreted the
concept of a right broadly in Joseph to ‘include not only vested, private law
rights but also legal entitlements that have their basis in the constitutional
and statutory obligations of government’.101 However, even when a right is
defined in this manner, it does not encompass a legitimate expectation.
A legitimate expectation arises either from an express promise made by a
public authority or as a consequence of a regular practice of a public
authority which the claimant can reasonably expect to continue.102 If either
of these criteria is established, then the expectation is legitimate and will,
depending on the circumstances of the case, give rise to a right to a hearing
before the decision is taken.
Thus, an expectation is something that is broader than a right. It has been
described as a benefit, an advantage or a privilege. In South African
Veterinary Council and Another v Szymanski, the Supreme Court of Appeal
(SCA) held that it is not whether the expectation exists in the mind of the
litigant, but whether objectively such expectation exists in a legal sense.103
In Walele v City of Cape Town and Others, the Constitutional Court
confirmed that the enquiry is essentially a factual one and that there is a
two-stage process.104 In this case the Constitutional Court dealt with the
anomaly between the definition in section 1 and the inclusion of legitimate
expectation in section 3 as follows:
But the difficulty is that administrative action is defined
in section 1 of PAJA as a decision which adversely affects
the rights of another person. In the definition no
reference is made to a decision affecting legitimate
expectations. Yet section 3 refers to administrative action
that affects legitimate expectations. Applying the
definition to the interpretation of section 3 will lead to
absurdity. Therefore, I am willing not to apply it and to
assume that section 3 of PAJA confers the right to
procedural fairness also on persons whose legitimate
expectations are materially and adversely affected by an
administrative decision. In the context of section 3,
 administrative action cannot mean what was intended in
the definition section.105
The Court also stated that the applicant has to establish objectively that the
facts give rise to an expectation. If the applicant succeeds in establishing
this, the enquiry moves to the second stage which is whether in the
circumstances of the case, procedural fairness requires a pre-decision
hearing.106 Thus, if a municipality regularly invited interested parties to
inspect the plans and to make representations when considering applications
for the approval of plans for the erection of buildings, then a legitimate
expectation would arise as a consequence of this regular practice. A person
who is affected by the development could argue that they have a legitimate
expectation, that they should be treated procedurally fairly and be given the
opportunity to make representations. In Walele, the Court held that the fact
that the City had afforded a hearing in one application does not constitute a
legitimate expectation.
Once the applicant has established that either a right or a legitimate
expectation has been materially and adversely affected, he or she thus has
the right to be treated procedurally fairly. The content of this right is
flexible and will depend on the circumstances of the case. The following are
the core obligations that must be met for the functionary to act procedurally
fairly.
d) Procedural fairness of administrative action that affects any person:
section 3 of the PAJA
Section 3(2)(b) of the PAJA sets out five compulsory elements of any
procedurally fair administrative action that affects the rights and, as we saw
above, the legitimate expectations, of any person. The five core
requirements can be divided into two parts, namely the pre-hearing and
post-hearing requirements.
The pre-hearing requirements oblige first that the affected person be
given adequate notice of the nature and purpose of the proposed
administrative action and a reasonable opportunity to make representations.
Thus, the applicant must be given adequate time to prepare a response and
sufficient information to know the case he or she has to meet and to be
aware of the consequences of the proposed administrative action.
 Second, there must be a reasonable opportunity to make representations.
What is reasonable will depend on the circumstances of each case.
Section 3(2)(b)(ii) requires that a reasonable opportunity be given to make
representations. This is less exacting than the requirement in section 3(3)(c)
which requires that in certain circumstances an opportunity be given to
appear in person. It is clear that section 3(2)(b)(ii) permits written
representations and is an attempt to prevent the proceedings from becoming
too formal.107 However, what is appropriate will depend on a variety of
factors including whether the affected person is able to communicate in
writing.
Once the functionary has made the decision, he or she must, third,
provide a clear statement of the administrative action. As Hoexter indicates,
the statement should detail ‘what has been decided, when, by whom and on
what legal and factual basis’.108 Fourth, the functionary must provide
adequate notice of any right of review or internal appeal. In many instances,
enabling laws allow an appeal from the decision of the functionary to an
internal appeal tribunal. Notices of this internal appeal must be provided to
the affected person. Finally, the functionary is obliged to inform the affected
person of his or her right to request reasons in terms of section 5 of the
PAJA.
However, section 3(4)(a) of the PAJA provides that if it is ‘reasonable
and justifiable in the circumstances’, the requirements set out above need
not be complied with. Section 3(4)(b) lists the following factors to be taken
into account when making such a determination:
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need to take, the
administrative action;
(iii) the likely effect of the administrative action;
(iv) the urgency of taking the administrative action or
the urgency of the matter; and
(v) the need to promote an efficient administration and
good governance.
This means these ‘compulsory’ requirements for a procedurally fair
administrative action are not, in fact, compulsory in all cases. The PAJA
therefore aims to prevent the imposition of duties on the administrator that
are so onerous that it would make effective administration difficult or even
impossible.

PAUSE FOR REFLECTION

The ‘compulsory’ requirements for a

procedurally fair administrative action
Currie and De Waal argue that the compulsory nature of
these five requirements set out in section 3(2)(b) of the
PAJA can be deceptive:
First, the elements are always subject to interpretation informed by
a circumstance-based understanding of procedural fairness. Their
content will thus tend to vary from case to case. Secondly, in
several elements the score for variation is increased by the use of
inherently flexible standards … Thirdly, the Constitutional Court
has held that s 3(2)(a) must be read as giving courts the discretion
in enforcing the minimum requirements under s 3(2)(b) even when
s 3(4) is not invoked. In other words, the court is not bound to
enforce even the compulsory requirements, and an administrator
may be able to depart from them without relying on s 3(4).109

In Joseph, the Constitutional Court had to decide whether

a fair administrative process had been followed when the
City decided to terminate the electricity supply to a block of
flats. The Court enforced the requirement that a pre-
termination notice had to be given to all tenants in the
block of flats. However, noting its decision in Premier,
Mpumalanga that in ‘determining what constitutes
procedural fairness in a given case, a court should be slow
to impose obligations upon government which will inhibit its
ability to make and implement policy effectively’,110 the
Court declined to impose a duty on the City to receive and
process representations from tenants in every case.111
Section 3(3) recognises that in certain circumstances a further layer of
procedural formalities is necessary. Thus, in certain circumstances it may be
necessary for the affected persons to be permitted legal representation, to be
permitted to be present and to dispute information and argument and to
appeal in person. In Hamata and Another v Chairperson, Peninsula
Technikon Internal Disciplinary Committee and Others,112 the applicant
requested to be legally represented at a disciplinary hearing. The Court held
that while there was no right to legal representation in administrative
proceedings, there was a right to have the request for legal representation
considered. Thus, the presiding officer must have discretion to determine
whether to allow legal representation. In making this decision, regard must
be had to the following factors:
• the degree of legal and factual complexity of the matter
• the potential seriousness of the consequences for the relevant parties of
an adverse finding
• whether the opposing party is legally represented.
Should the administration wish to depart from the requirements of the
section, it may do so provided it establishes that it is reasonable and
justifiable to do so. In making this decision, the administrator must have
regard to all the criteria listed in section 3(4) of the PAJA.

CRITICAL THINKING

An example of the contextual approach to

procedural fairness
The contextual approach to procedural fairness can be
applied with reference to the following set of facts. Assume
that the Department of Mineral Resources has to follow a
two-stage process before issuing a licence to mine. The
first stage is a preliminary stage during which the applicant
requests permission to conduct an initial feasibility study
and viability assessment. The second stage is when an
 application is formally considered for the licence to be
granted.
Assume further that an application is made to mine the
banks of the Vaal River. The Department indicates that all
parties will be given an opportunity to participate during the
second phase of the process when the merits of the
applications will be fully considered. However, it declines to
give an association of residents the opportunity to make
representations at the first phase on the basis that it would
unnecessarily hinder and slow down the process.
Do you think the Department is obliged to give the
residents the opportunity to make representations during
both phases? If not, why not?

e) Procedural fairness of administrative action that affects the public:

section 4 of the PAJA
It is not only when an administrative action affects an individual person that
the action may have to be procedurally fair. Section 4(1) of the PAJA places
certain obligations on an administrator where the administrative action
‘materially and adversely affects the rights of the public’. The two
procedures outlined in section 4 are a notice and comment procedure and a
public enquiry procedure.113 Section 4 states that:
(1) In cases where an administrative action materially
and adversely affects the rights of the public, an
administrator, in order to give effect to the right to
procedurally fair administrative action, must decide
whether –
(a) to hold a public inquiry in terms of subsection
(2);
(b) to follow a notice and comment procedure in
terms of subsection (3);
(c) to follow the procedures in both subsections (2)
and (3);
 (d) where the administrator is empowered by any
empowering provision to follow a procedure
which is fair but different, to follow that
procedure; or
(e) to follow another appropriate procedure which
gives effect to section 3.
(2) If an administrator decides to hold a public inquiry –
(a) the administrator must conduct the public
inquiry or appoint a suitably qualified person or
panel of persons to do so; and
(b) the administrator or the person or panel referred
to in paragraph (a) must –
(i) determine the procedure for the public
inquiry, which must –
(aa) include a public hearing; and
(bb) comply with the procedures to be
followed in connection with public
inquiries, as prescribed;
(ii) conduct the inquiry in accordance with
that procedure;
(iii) compile a written report on the inquiry
and give reasons for any administrative
action taken or recommended; and
(iv) as soon as possible thereafter –
(aa) publish in English and in at least one
of the other official languages in the
Gazette or relevant provincial Gazette
a notice containing a concise
summary of any report and the
particulars of the places and times at
which the report may be inspected
and copied; and
(bb) convey by such other means of
communication which the
administrator considers effective, the
 information referred to in item (aa) to
the public concerned.
(3) If an administrator decides to follow a notice and
comment procedure, the administrator must –
(a) take appropriate steps to communicate the
administrative action to those likely to be
materially and adversely affected by it and call
for comments from them;
(b) consider any comments received;
(c) decide whether or not to take the administrative
action, with or without changes; and
(d) comply with the procedures to be followed in
connection with notice and comment procedures,
as prescribed.
(4) (a) If it is reasonable and justifiable in the
circumstances, an administrator may depart
from the requirements referred to in subsections
(1)(a) to (e), (2) and (3).
(b) In determining whether a departure as
contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into
account all relevant factors, including –
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need
to take, the administrative action;
(iii) the likely effect of the administrative
action;
(iv) the urgency of taking the administrative
action or the urgency of the matter; and
(v) the need to promote an efficient
administration and good governance.
This section only applies to ‘cases where an administrative action
materially and adversely affects the rights of the public’. It can be
distinguished from section 3 as it does not apply to ‘legitimate expectations’
but only to cases where the rights of the public are adversely affected. Also,
it does not apply to cases where one or more individuals are concerned but
rather to cases where the rights of members of the public are concerned. In
other words, the section applies to administrative actions that have an
adverse impact of a general kind where the rights of members of the public
are at issue and where the impact is not trivial.114 For example, say a
decision is taken to declare certain national roads toll roads where tolls will
be levied via e-toll tags. The administrative decision will apply to the
general public, will affect the rights of the public to use national roads and
will have some impact on everyone who wishes to use such roads. These
provisions may then potentially be imposed on the administrator who
makes the decision.
As can be seen from the text of section 4, it has a fairly ‘straightforward
structure’.115 It details the procedures to be followed in cases where notice
and comment procedures are required and where a public enquiry is
required and sets out departures from these obligations.

15.2.5.2.5 The right to be given reasons for an administrative action

a) Introduction
In our law it is assumed that there will often be great value in giving
reasons for an administrative action. A duty to give reasons entails a duty to
rationalise the decision. As Baxter argues: ‘Reasons therefore help to
structure the exercise of discretion, and the necessity of explaining why a
decision is reached requires one to address one’s mind to the decisional
referents which ought to be taken into account.’ 116 Giving reasons also
satisfies an important desire on the part of the affected individual to know
why a decision was reached. According to Baxter, ‘This is not only fair: it is
also conducive to public confidence in the administrative decision-making
process.’ 117 The most important reason for having to give reasons is that it
allows for rational criticism of a decision. It thus subjects the administration
to public scrutiny and it also provides an important basis for appeal or
review. Lastly, where reasons are provided, this ‘may serve a genuine
educative purpose, for example where an applicant has been refused on
grounds which he is able to correct for the purpose of future
applications’.118
The right to be given reasons for an administrative action is set out in
section 5 of the PAJA. Section 5 provides as follows:
(1) Any person whose rights have been materially and
adversely affected by administrative action and who
has not been given reasons for the action may, within
90 days after the date on which that person became
aware of the action or might reasonably have been
expected to have become aware of the action, request
that the administrator concerned furnish written
reasons for the action.
(2) The administrator to whom the request is made
must, within 90 days after receiving the request, give
that person adequate reasons in writing for the
administrative action.
(3) If an administrator fails to furnish adequate reasons
for an administrative action it must, subject to
subsection (4) and in the absence of proof to the
contrary, be presumed in any proceedings for
judicial review that the administrative action was
taken without good reason.
(4) (a) An administrator may depart from the
requirement to furnish adequate reasons if it is
reasonable and justifiable in the circumstances,
and must forthwith inform the person making
the request of such departure.
(b) In determining whether a departure as
contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into
account all relevant factors, including:
(i) the objects of the empowering provision;
(ii) the nature, purpose and likely effect of
the administrative action concerned;
 (iii) the nature and the extent of the
departure;
(iv) the relation between the departure and its
purpose;
(v) the importance of the purpose of the
departure; and
(vi) the need to promote an efficient
administration and good governance.
(5) Where an administrator is empowered by any
empowering provision to follow a procedure which is
fair but different from the provisions of subsection
(2), the administrator may act in accordance with
that different procedure.
(6) (a) In order to promote an efficient administration,
the Minister may, at the request of an
administrator, by notice in the Gazette publish a
list specifying any administrative action or a
group or class of administrative actions in
respect of which the administrator concerned
will automatically furnish reasons to a person
whose rights are adversely affected by such
actions, without such person having to request
reasons in terms of this section.
(b) The Minister must, within 14 days after the
receipt of a request referred to in paragraph (a)
and at the cost of the relevant administrator,
publish such list, as contemplated in that
paragraph.
Section 5 is divided into six subsections. Subsection 1 confers a right to
request reasons within 90 days on any person whose rights have been
materially and adversely affected by an administrative act. This right is
activated on request. If no such request has been made, no reasons need to
be given unless the Minister, acting in terms of subsection 6, has designated
the administrative action as one for which reasons must automatically be
given. Subsection 2 provides that adequate and written reasons must be
given within 90 days after a request has been made. Subsection 3 sets out
some of the consequences that arise if an administrator fails to provide
adequate and written reasons. The circumstances in which an administrator
can depart from the requirement to furnish reasons are set out in
subsection 4. Finally, subsection 5 allows an administrator to follow an
alternative procedure provided it is fair.
b) Rights and legitimate expectations
Like the right to procedural fairness, a person can claim the right to be
given reasons if his or her rights or legitimate expectations have been
materially and adversely affected by administrative action. While it is quite
clear that section 5 applies to a person who already has a right or a
legitimate expectation, it is not so clear whether it applies to a person who
does not already have such a right or expectation. For example, does this
right apply to a person who is applying for a benefit or a licence they do not
already have?
In Transnet Ltd. v Goodman Brothers (Pty) Ltd,119 the SCA had to
consider whether a tenderer had a right to reasons under the interim
Constitution for their tender being unsuccessful. This case was decided
before the PAJA came into effect. Clearly, a person who tenders for a
contract does not have a right to the contract. Transnet argued that the
tenderer was ‘a stranger to the tender process’ and thus not granting the
tender to Goodman Brothers did not adversely affect their rights.120 As a
consequence, there was no obligation to provide reasons for the decision
not to award Goodman Brothers the tender.121
The SCA focused not on the right to the contract, but rather on the right
to lawful and procedurally fair administrative justice. The Court took the
view that if Goodman Brothers were not given reasons, their rights to
lawful and fair administrative action would be adversely affected as there
would be no way of knowing whether these rights had been violated.
Finding that their rights were affected, the Court directed Transnet to
provide reasons for not awarding the tender to Goodman Brothers.122
A case that deals much more directly with the issue is Wessels v Minister
for Justice and Constitutional Development and Others.123 The applicant
was a regional court magistrate who applied for the post of President of the
Regional Court. The Magistrates Commission found four candidates
including the applicant to be appointable and sent this recommendation to
the then Minister of Justice. The Minister appointed magistrate B to the post
and provided no response when the applicant asked for reasons.
The Court rejected the Minister’s contention that the appointment of
magistrates was an executive and not an administrative action. The Minister
argued that as the applicant had applied for a post and was unsuccessful, no
rights were adversely affected and hence there was no obligation to provide
reasons in terms of section 5 of the PAJA. The High Court held that this
would mean that there would be no obligation to provide reasons for any
‘application cases’.124
In rejecting this argument, the Court held that the obligation to provide
reasons would then arise only in narrow and limited circumstances and
would not give effect to the constitutional right to just administrative action.
Such an interpretation, according to the Court, must be avoided.125 The
Court referred to dicta of Kondile AJ in Union of Refugee Women and
Others v Director, Private Security Industry Regulatory Authority and
Others,126 where the Constitutional Court held that a refusal to register a
private security company had an adverse effect on their rights. This was
held in Wessels to mean that a decision to refuse an applicant a licence or a
benefit adversely affects the rights of the applicant. As a consequence,
reasons must be provided.127
In this case, the Court held that the Minister was obliged to provide
reasons and as the Minister did not provide reasons, the Court, acting in
terms of section 5(5) of the PAJA, concluded that the decision was taken
without good reason.128 The consequence of this was that the Court set
aside the appointment of magistrate B.
While reasons must be submitted for both deprivation and determination
cases, the nature, quality and quantity of the reasons submitted may differ
depending on whether a person’s rights are being determined or diminished.

PAUSE FOR REFLECTION

 Is the requirement to provide reasons an
excessive burden?
On the basis of Wessels, a public body must provide
reasons to applicants who are unsuccessful in applying for
positions or benefits. Do you think that this imposes an
excessive burden on public bodies that could detract from
the performance of their core function? Alternatively, do
you think that it would be a healthy exercise if government
gets into the habit of supplying reasons?

c) The meaning of adequate reasons

Once the right to be provided with reasons arises, the administrator is
obliged to provide adequate reasons. It is probable that administrators will
submit reasons and the issue will then be whether the reasons provided are
adequate. Summarising the law in the United Kingdom, De Smith, Woolf
and Jowell state that the ‘reasons must show that the decision maker
successfully came to grips with the main contentions advanced by the
parties’ and must ‘tell the parties in broad terms why they lost or, as the
case may be, won’.129
In a similar vein, in Minister of Environmental Affairs and Tourism and
Others v Phambili Fisheries (Pty) Ltd and Another,130 Schultz JA
approvingly quoted an extract from a judgment of the Federal Court of
Australia 131 where that Court said adequate reasons had to be given to
enable:
the decision-maker to explain his decision in a way which
will enable a person aggrieved to say, in effect: ‘Even
though I may not agree with it, I now understand why
the decision went against me. I am now in a position to
decide whether that decision has involved an
unwarranted finding of fact, or an error of law, which is
worth challenging.’ This requires that the decision-
maker should set out his understanding of the relevant
law, any findings of fact on which his conclusions depend
 (especially if those facts have been in dispute), and the
reasoning processes which led him to those conclusions.
He should do so in clear and unambiguous language, not
in vague generalities or the formal language of
legislation. The appropriate length of the statement
covering such matters will depend upon considerations
such as the nature and importance of the decision, its
complexity and the time available to formulate the
statement. Often those factors may suggest a brief
statement of one or two pages only.132
In summary, De Ville submits that the determination of adequacy should be
made by having regard to the consequences of the action taken, whether the
application involves a benefit or a deprivation of a right, the nature of the
right that is adversely affected, the nature of the proceedings preceding the
actions taken, the nature and complexity of the decision, the nature of the
authority taking the decision, the time available to formulate the reasons
and the need to ensure administrative efficiency.133
If the administrator fails to provide adequate reasons, then in the absence
of proof to the contrary, it will be presumed that the administrative action
was taken without good reason and, as a consequence, could be reviewed
and set aside. The administrator may depart from the requirement to
provide adequate reasons if it is reasonable and justifiable to do so taking
into account all the relevant factors listed in section 5(4)(b) of the PAJA.
The duty to provide reasons will ensure that proper decisions are made at
source and that the administrators are both responsive and accountable to
those who are affected by the decisions.

15.3 The right of access to information

15.3.1 Introduction
Section 1 of the Constitution establishes the principle that the South African
system of government is based on several values, including a multiparty
system of government ‘to ensure accountability, responsiveness and
openness’.134 The right of access to information partly gives effect to this
norm by establishing for everyone the right of access to information that
may potentially affect them. The right of access to information is therefore
one of the most important rights (along with freedom of expression and the
right to vote) contained in the Constitution to ensure the establishment of
the ideal government postulated in the founding values set out in section 1
of the Constitution. In the apartheid era, the state was secretive and often
withheld information from people – something which was, of course, easier
to do in the pre-Internet era. The secretiveness of the apartheid state was
often aimed at keeping citizens in the dark about aspects of its policies and
actions and was therefore profoundly undemocratic.

PAUSE FOR REFLECTION

The importance of the right of access to

information
In 1975, the apartheid government decided to intervene
militarily in the civil war which had erupted in Angola after
the withdrawal of the Portuguese from their erstwhile
colony. At first, the South African government denied that
South African troops were present in Angola despite the
fact that the troops were at the outskirts of Luanda. This
information was kept secret from the South African public.
The apartheid regime saw nothing wrong with lying to the
country about the Defence Force involvement in Angola.
South Africans only received confirmation of this
invasion when it was revealed in the whites-only
Parliament by Frederick van Zyl Slabbert, a member of the
opposition Progressive Federal party, who later became
the Leader of the Opposition before leaving Parliament
because he felt that participating in it no longer served any
purpose. Van Zyl Slabbert had to reveal the information in
Parliament where he was protected by parliamentary
 privilege in order to evade the strict secrecy legislation in
place at the time.
Our Constitution now requires the President to inform
Parliament promptly whenever the Defence Force is
deployed to prevent the government from misleading the
public again in such a flagrant manner. As the deployment
of South African troops in a war situation is a radical step,
and as the President is accountable to Parliament and to
the voters for taking such a step, the President cannot
deploy troops in secret to avoid accountability for his or her
actions. The events of 1975 vividly illustrate how important
it was for the drafters of the Constitution to include the right
of access to information in the Bill of Rights.

Section 32 of the Bill of Rights states:

(1) Everyone has the right of access to –
(a) any information held by the state; and
(b) any information that is held by another person
and that is required for the exercise or protection
of any rights.
(2) National legislation must be enacted to give effect to
this right, and may provide for reasonable measures
to alleviate the administrative and financial burden
on the state.
The right of access to information has a political dimension in that an open
and free democratic society requires that government be accountable for its
actions. These actions should be informed by rational reasons that
government can explain to those affected by such decisions. It is impossible
to hold accountable a government that operates in secrecy.135 Access to
information is fundamental to encouraging transparency and accountability
in government operations. First, transparency aims to promote
accountability in government and second, to promote greater public
participation. It is further an important tool in the fight against
corruption.136
Besides the political dimension of the right of access to information, the
right is also closely connected to the realisation of other rights such as the
right to freedom of expression, the right to privacy and the right to vote.
This is because the right of access to information is closely related to the
right to receive information. In addition, the right of access to information
is grounded, in part, on the principle that an individual should be allowed
access to information that is specifically about him or her or, in more
general terms, information that the state uses to make decisions that may
affect an individual. The right of access to information is also crucial in
allowing an accused person adequate facilities with which to prepare a
defence.137 In a democratic society, the effective exercise of the right to
vote also depends on the right of access to information. Without access to
information, the ability of citizens to make responsible political decisions
and to participate meaningfully in public life is undermined.138
In Brümmer v Minister for Social Development and Others, the
Constitutional Court explained the importance of the right of access to
information in a country founded on ‘values of accountability,
responsiveness and openness’ as follows:
To give effect to these founding values, the public must
have access to information held by the state. Indeed one
of the basic values and principles governing public
administration is transparency. And the Constitution
demands that transparency “must be fostered by
providing the public with timely, accessible and accurate
information.” Apart from this, access to information is
fundamental to the realisation of the rights guaranteed in
the Bill of Rights. For example, access to information is
crucial to the right to freedom of expression which
includes freedom of the press and other media and
freedom to receive or impart information or ideas … The
role of the media in a democratic society cannot be
gainsaid. Its role includes informing the public about
 how our government is run, and this information may
very well have a bearing on elections. The media
therefore has a significant influence in a democratic
state. This carries with it the responsibility to report
accurately. The consequences of inaccurate reporting
may be devastating. Access to information is crucial to
accurate reporting and thus to imparting accurate
information to the public.139
The right of access to information is in stark contrast with the ‘culture of
secrecy’ which, as noted above, prevailed in the apartheid state.140 It is
therefore not surprising that the right of access to information was included
in the interim Constitution. Section 23 of the interim Constitution provided
that:
Every person shall have the right of access to all
information held by the state or any of its organs at any
level of government in so far as such information is
required for the exercise or protection of any of his or
her rights.
Constitutional Principle IX further required that the final Constitution make
provision for ‘freedom of information so that there can be open and
accountable administration at all levels of government’. To give effect to
this Constitutional Principle, the 1996 Constitution expanded the right
beyond the scope of of the right protected in the interim Constitution. The
right in the final Constitution expanded the scope of the right to apply to
information held by a private person or institution. This extension
recognises the fact that private institutions, such as large corporations, may
exercise enormous power in a society. The information these private
institutions hold could easily be used to the detriment of individuals or
could be required by individuals to exercise their other rights, including
their rights as consumers not to be exploited for profit.
However, for practical purposes, the most important difference between
the interim Constitution and the final Constitution is that the final
Constitution extends the right of access to information by placing a duty on
the state to enact supplementary legislation to give effect to the right. The
Constitution required this legislation to be adopted within a period of three
years after the commencement of the 1996 Constitution. The Promotion of
Access to Information Act (PAIA) 141 was enacted in 2000 to give effect to
section 32 of the Constitution. The PAIA is the principal legal source
defining the right of access to information and the promotion of access to
information in South Africa is now almost entirely regulated by the
PAIA.142 This is because of the principle of subsidiarity which states that:
Where … the Constitution requires Parliament to enact
legislation to give effect to the constitutional rights
guaranteed in the Constitution, and Parliament enacts
such legislation, it will ordinarily be impermissible for a
litigant to found a cause of action directly on the
Constitution without alleging that the statute in question
is deficient in the remedies that it provides. Legislation
enacted by Parliament to give effect to a constitutional
right ought not to be ignored. And where a litigant
founds a cause of action on such legislation, it is equally
impermissible for a court to bypass the legislation and to
decide the matter on the basis of the constitutional
provision that is being given effect to by the legislation in
question.143
A litigant who wishes to gain access to information held by the state or by a
private institution will therefore have to follow the procedures set out in the
PAIA and will usually only have the right to gain access to that information
if the PAIA allows this.

15.3.2 Interpretation of the Promotion of Access to

Information Act 2 of 2000

15.3.2.1 The purpose of the PAIA

It is important to note when interpreting the provisions of the PAIA that the
Act was passed with the intention of giving effect to the right of access to
information.144 This means the PAIA is meant to elaborate on section 32 of
the Constitution, to make the section effective in a practical manner and to
promote the right set out in the Bill of Rights.145 This means the courts
must interpret the PAIA generously and purposively and with the necessary
attention to the context.146 When interpreting the PAIA, it is important to
understand that legislation cannot be precisely drafted to anticipate every
eventuality. Courts should keep in mind the broad purpose of the PAIA
when confronted with the need to interpret the Act to decide if and how it
applies to a unique set of circumstances. The first step in understanding the
PAIA is therefore to identify the various purposes of the Act.147
Section 9 of the PAIA states:
The objects of this Act are –
(a) to give effect to the constitutional right of access to:
(i) any information held by the State; and
(ii) any information that is held by another person
and that is required for the exercise or protection
of any rights;
(b) to give effect to that right:
(i) subject to justifiable limitations, including, but
not limited to, limitations aimed at the
reasonable protection of privacy, commercial
confidentiality and effective, efficient and good
governance; and
(ii) in a manner which balances that right with any
other rights, including the rights in the Bill of
Rights in Chapter 2 of the Constitution;
(c) to give effect to the constitutional obligations of the
State of promoting a human rights culture and social
justice, by including public bodies in the definition of
“requester”, allowing them, amongst others, to
access information from private bodies upon
compliance with the four requirements in this Act,
including an additional obligation for certain public
 bodies in certain instances to act in the public
interest;
(d) to establish voluntary and mandatory mechanisms or
procedures to give effect to that right in a manner
which enables persons to obtain access to records of
public and private bodies as swiftly, inexpensively
and effortlessly as reasonably possible; and
(e) generally, to promote transparency, accountability
and effective governance of all public and private
bodies by, including, but not limited to, empowering
and educating everyone:
(i) to understand their rights in terms of this Act in
order to exercise their rights in relation to public
and private bodies;
(ii) to understand the functions and operation of
public bodies; and
(iii) to effectively scrutinise, and participate in,
decision-making by public bodies that affects
their rights.
It is clear from section 9 that the PAIA must be understood and interpreted
with reference to the purposes for which section 32 was included in the Bill
of Rights as the provisions of the PAIA are aimed at giving effect to the
constitutional right of access to any information held by the state.
Section 11 of the PAIA underscores the rights-based focus of the Act as
it casts the duty on those bound by the PAIA to provide information in
peremptory terms – the requester ‘must’ be given access to the report so
long as the request complies with the procedures outlined in the PAIA and
the record requested is not protected from disclosure by one of the
exemptions set out in the Act. Under our law, therefore, the disclosure of
information is the rule and exemption from disclosure is the exception.148
As a general rule, a requester must be given access to a record held by a
public body 149 if:
• the requester complies with all the procedural requirements set out in the
PAIA relating to a request for access to that record
• access to that record is not refused in terms of any ground for refusal as
set out in the PAIA.150
As a a general rule, a requester must be given access to records held by a
private body 151 if:
• that record is required for the exercise or protection of any rights
• that person complies with the procedural requirements set out in the
PAIA relating to a request for access to that record
• access to that record is not refused in terms of any ground for refusal set
out in the PAIA.152
The PAIA should be interpreted by keeping in mind that the Act envisages
that the granting of access to information should be the default position.
Note that the right of access to information from a private body is more
limited than the right of access to information from a public body. It is only
when the record is required ‘for the exercise or protection of any rights’ that
a private body is obliged to provide access to that information to a
requester. When assessing whether access to information is actually
required, the requester of information from a private body will have to
show the private body that the information requested would be of assistance
to him or her.153 The existence of alternative remedies under the common
law would be a factor to be taken into account. The requester of information
from a private body will also have to show that a ‘substantial advantage’
will be gained from access to the information or will have to show an
‘element of need’ for the information.154
It is unclear whether the requester of information from a private body
must show that the record is required for the exercise of a fundamental right
protected in the Constitution or whether the PAIA envisages a broader
application of the right to gain access to information held by a private body
by also covering records required to exercise non-constitutional rights.
These rights would include private law rights arising from contractual or
delictual obligations. Currie and De Waal argue that the purposes of the
PAIA are best served by a narrower reading of rights. They argue that a
requester will only be entitled to a record held by a private body if the
record is required to prevent harm to fundamental rights, including rights
protected in the Bill of Rights and other rights derived from the Bill of
Rights protected in common law.155

PAUSE FOR REFLECTION

The vast majority of requests for access to

information in terms of the PAIA to various
public institutions go unanswered
The obligations in the PAIA to provide access to
information held by the state and private bodies are
extensive. In legal terms, the heart of the PAIA centres
around the various exceptions set out in the Act that would
allow refusal to grant access to records. However, one of
the most problematic aspects of the PAIA relates to
something entirely different, namely the refusal or inability
of record holders to respond to access to information
requests at all. A 2010 Report reveals that the vast majority
of requests for access to information in terms of the PAIA
to various public institutions went unanswered as illustrated
in Figure 15.1.156
 Figure 15.1 Results of 82 institutions sampled in 2010
This Report was compiled after a total number of 82
institutions were sampled in 2010.
Only 26 institutions responded to the requests for access
to information. As the Report explains:
8 institutions out of 23 responded in the national department
category, 9 out of 25 institutions responded on the provincial level,
while 8 out of 34 municipalities responded at the local government
level. The 2010 31% result is a cause for concern as it is
significantly lower than the 2009 and the 2008 results where we
recorded a response of 40% and 39% respectively from the
sampled institutions.157

These statistic do not deal with whether access to

information requests were refused. Rather, the statistics
deal with whether access to information requests were
responded to at all. Accurate statistics about whether
requests are correctly refused are not available. As we
shall see in the next section, the PAIA contains several
exceptions which allow a public or private body to refuse to
grant an access to information request. Unless officials are
trained and understand what these exceptions entail, there
will be a danger that they will rely wrongly on one or more
of these exceptions to deny a request for access to
information.

15.3.2.2 The regulation of access to information by the

PAIA
Although non-disclosure of information ought to be the exception, this does
not mean that the PAIA does not place limitations on the right of access to
information. It does this by stipulating procedures that need to be followed
for making a valid access to information request. The PAIA also exempts
certain information from disclosure as it may be necessary to place
‘reasonable and justifiable’ limitations on the right of access to information,
even in an open and democratic society, to protect other rights or
interests.158 Although the default position in the PAIA is to give access to
information to those who request it, at the heart of the Act are the grounds
for justifying a refusal to grant access to information.
In so far as these grounds are concerned, the PAIA provides that the
information officer of a public or a private body must refuse a request for
access to records of that body:
• if its disclosure would involve the unreasonable disclosure of personal
information about a third party,159 including a deceased individual
• if the record contains information which was obtained or is held by the
South African Revenue Service for the purposes of enforcing legislation
concerning the collection of revenue 160
• if the record contains trade secrets of a third party; financial,
commercial, scientific or technical information other than trade secrets of
a third party, the disclosure of which would be likely to cause harm to
the commercial or financial interests of that third party; or information
supplied in confidence by a third party, the disclosure of which could
reasonably be expected to put that third party at a disadvantage in
contractual or other negotiations or to prejudice that third party in
commercial competition 161
• if the disclosure of the record would constitute an action for breach of a
duty of confidence owed to a third party in terms of an agreement; 162
and a public body may refuse a request for access to a record of the body
if the record consists of information that was supplied in confidence by a
third party, the disclosure of which could reasonably be expected to
prejudice the future supply of similar information or information from
the same source; and if it is in the public interest that similar information
or information from the same source should continue to be supplied
• if its disclosure could reasonably be expected to endanger the life or
physical safety of an individual; if its disclosure would be likely to
prejudice or impair the security of a building, structure or system,
including, but not limited to, a computer or communication system; a
means of transport; any other property; methods, systems, plans or
 procedures for the protection of an individual in accordance with a
witness protection scheme; the safety of the public or any part of the
public; or the security of property as contemplated above 163
• if the record is privileged from production in legal proceedings unless
the person entitled to the privilege has waived the privilege.164
In addition, public body must also refuse to grant access to information:
• if its disclosure could reasonably be expected to cause prejudice to the
defence of the Republic; the security of the Republic; the international
relations of the Republic; would reveal information supplied in
confidence by or on behalf of another state or an international
organisation; supplied by or on behalf of the Republic to another state or
an international organisation in terms of an arrangement or international
agreement with that state or organisation which requires the information
to be held in confidence; or required to be held in confidence by an
international agreement or customary international law
• if its disclosure would be likely to materially jeopardise the economic
interests or financial welfare of the Republic or the ability of the
government to manage the economy of the Republic effectively in the
best interests of the Republic.165
Despite these provisions, the PAIA contains a general public interest
override for requests of most of the records which bodies are granted the
power to deny in the Act.166 In such cases, the public or private body will
have to grant access to the information – despite the information falling
within one of the exceptions set out in the Act – if the disclosure of the
record would reveal evidence of:
• a substantial contravention of, or failure to comply with, the law
• an imminent and serious public safety or environmental risk
• the public interest in the disclosure of the record clearly outweighs the
harm contemplated in the provision in question.
Note that this public interest override is narrow in scope as it does not cover
cases where records would show maladministration that does not rise to the
level of an unlawful act.
15.3.2.3 The question of a ‘judicial peek’ at refused records
In cases where a body refuses to grant access to records, it will be very
difficult for a litigant to establish whether the refusal was done properly in
terms of one of the exceptions set out above or whether the refusal was
unlawful. The PAIA empowers courts to review independently the record in
order to assess the validity of the exemptions claimed and provides
legislative recognition that, through no fault of their own, the parties may
be constrained in their abilities to present and refute evidence. If a person
who requested access to a record is denied access and wishes to appeal the
decision to deny him or her access, the PAIA allows the court to have a
‘judicial peek’ at the requested record to determine whether the refusal was
lawfully granted or not. Section 80 – the so-called ‘judicial peek’ provision
of the PAIA – states:
(1) Despite this Act and any other law, any court hearing
an application, or an appeal against a decision on
that application, may examine any record of a public
or private body to which this Act applies, and no
such record may be withheld from the court on any
grounds.
(2) Any court contemplated in subsection (1) may not
disclose to any person, including the parties to the
proceedings concerned, other than the public or
private body referred to in subsection (1) –
(a) any record of a public or private body which, on
a request for access, may or must be refused in
terms of this Act; or
(b) if the information officer of a public body, or the
relevant authority of that body on internal
appeal, in refusing to grant access to a record in
terms of section 39(3) or 41(4), refuses to confirm
or deny the existence or non-existence of the
record, any information as to whether the record
exists.
(3) Any court contemplated in subsection (1) may –
 (a) receive representations ex parte; conduct
hearings in camera; and prohibit the publication
of such information in relation to the
proceedings as the court determines, including
information in relation to the parties to the
proceedings and the contents of orders made by
the court in the proceedings.
In President of the Republic of South Africa and Others v M & G Media
Ltd,167 the Constitutional Court was required to determine when to apply
this provision. A majority of the Court (per Ngcobo CJ) emphasised that the
court has a duty to exercise its power to have a judicial peek at confidential
documents in a responsible manner.168 A judicial peek facilitates the
exercise of the judicial function where courts may be lacking the material
necessary to determine responsibly whether the record falls within the
exemption claimed. A difficulty arises for courts when they apply
section 80 as the section does not spell out the circumstances under which
the power to examine the record may be exercised. The majority argued that
the discretionary power they are granted by section 80 must ‘be exercised
judiciously, with due regard to the constitutional right of access to
information and the difficulties the parties face in presenting and refuting
evidence’.169 The majority set out the following test:
Courts should exercise their discretion to call for
additional evidence in the form of the contested record
only where there is the potential for injustice as a result
of the unique constraints placed upon the parties in
access to information disputes. This injustice, as I have
pointed out above, may arise because either the
requester or the holder of information is prevented by
factors beyond its control from presenting the evidence
necessary to make its case.
As a discretionary power afforded to the courts to
prevent injustice, the standard for assessing whether a
court should properly invoke section 80 in a given case is
 whether it would be in the interests of justice for it to do
so.
…
… It will generally be in the interests of justice to invoke
section 80 where there is doubt, emerging from the
unique limitations parties in access to information
disputes face in presenting and refuting evidence, as to
whether an exemption is rightly claimed. This may be
the case where, through no fault of the state, the evidence
put forth by it is insufficient to allow the court to
responsibly determine whether the exemptions claimed
are valid, or where the validity of the exemptions claimed
cannot responsibly be evaluated without reference to the
information sought to be protected.
It may also be in the interests of justice to invoke
section 80 where the probabilities are evenly balanced.
Ordinarily, where the probabilities are evenly balanced,
the rules of civil procedure would require a court to find
against the holder of information as the bearer of the
burden of proof. Where, however, a court is faced with a
record that it acknowledges may or may not be
protected, in whole or in part, from disclosure, and the
doubt as to the validity of the exemptions claimed can be
explained in terms of the limitations placed upon the
parties in access to information disputes in presenting
and refuting evidence, it would be in the interests of
justice for the court to invoke section 80 in order to
responsibly decide the merits on the basis of the
additional evidence provided by the record.170

CRITICAL THINKING
A cautious approach to the invoking of
section 80
In the minority decisions of the Constitutional Court in M &
G Media Ltd, Cameron J cautioned courts against the
exercise of their powers in terms of section 80 of the PAIA.
This case dealt with an access to information request by
the Mail & Guardian newspaper. The request related to a
report on the conduct of the 2002 presidential election in
Zimbabwe compiled by judges who had been sent to the
country by then President Thabo Mbeki. In his separate
judgment, Cameron J disputed the finding of the majority
that when remitting the case to the High Court, that Court
could invoke section 80 of the PAIA to have a judicial peek
at the document. This was because the provision ‘should
be invoked with care’ and ‘should be resorted to only in
exceptional circumstances’.171 The minority proffered two
reasons for this:
First, a cautious approach to section 80 accords with the structure
of the statute. The Constitution creates an entitlement to
information held by government, which the statute has limited
under the Bill of Rights. The structure of PAIA is to stipulate the
process required to claim access, and to enumerate the instances
where it may be refused. The statute creates an over-riding judicial
power to examine the record, but goes on to provide explicitly that
the burden of establishing that an exemption is properly invoked
lies on the party claiming it. If the object of the statute were to
create a novel form of proceeding in access disputes, and invest
courts with inquisitorial powers for ready use in disputes, its
provisions would not have included so plain an imposition of the
burden on the holder of information.172

Second, the very provisions of section 80 make it plain that the

power it confers should be of rare recourse. The provision makes
the court a party to the secrecy claimed, and prohibits it from
disclosing the disputed record to any person, “including the parties
to the proceedings concerned”. In effect, two fundamental
principles of the administration of justice are here upended: first,
 the adversary nature of the parties’ dispute, in which the court is a
disinterested arbiter, is suspended; and, second, the indispensable
attribute of the administration of justice, its openness, is shrouded.
These are consequences that we should be reluctant to
countenance too readily.173

15.4 The right of access to the courts

15.4.1 Introduction
The right of access to court is a fundamental component of the rule of a law
in a constitutional democracy.174 Thus section 34 of the Bill of Rights
states that ‘[e]veryone has the right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or forum’.
The inclusion of this section in the Bill of Rights must be seen against
the background of the apartheid-era practice of ousting the jurisdiction of
the courts to enquire into the legal validity of certain laws or conduct. This
practice was in breach of the rule of law which establishes the principle,
inter alia, that anyone may challenge the legality of any law or conduct.175
However, it would only be meaningful to challenge such law or conduct if
this could be done in front of an independent and impartial body like a court
otherwise the right to challenge the legality of law or conduct would be
illusory. Section 34 is therefore closely related to upholding the rule of law.
As the Constitutional Court stated in Lesapo v North West Agricultural
Bank and Another, section 34:
and the access to courts it guarantees for the
adjudication of disputes are a manifestation of a deeper
principle; one that underlies our democratic order. The
effect of this underlying principle on the provision of s 34
is that any constraint upon a person or property shall be
exercised by another only after recourse to a court
recognised in terms of the law of the land. … Respect for
the rule of law is crucial for a defensible and sustainable
 democracy. In a modern constitutional State like ours,
there is no room for legislation which, as in this case, is
inimical to a fundamental principle such as that against
self help. This is particularly so when the tendency for
aggrieved persons to take the law into their own hands is
a constant threat.176
Section 34 creates the right of access to courts or another tribunal or forum
but such other tribunal or forum other than a court must be independent and
impartial. It also creates a due process right that requires a fair and a public
hearing. However, it is important to note that there is a threshold that must
be met before this right can be applied, namely that the dispute at issue can,
in fact, be resolved by the application of law.

15.4.2 Threshold question: can the dispute in question

be resolved by the application of law?
Section 34 is clear: the right does not apply to all people who wish to have a
dispute between them resolved by a court or independent tribunal. Some
disputes, for example disputes of a purely moral or religious nature, cannot
be resolved by the application of law and individuals with such disputes
cannot rely on section 34 to gain access to a court for the purposes of the
court resolving their dispute.177 It would also sometimes be difficult to
resolve disputes of a purely political nature in the courts.178
The distinction between moral, religious and political disputes on the one
hand and legal disputes on the other is, however, not that easy to draw. For
example, in Ramakatsa and Others v Magashule and Others,179 the
Constitutional Court considered the arguments by the applicants which, to
some extent, were of a political nature. The appellants in the case were all
members of the African National Congress (ANC) in the Free State
province. They approached the Court with a view to ‘setting aside as invalid
the Free State Provincial Conference of the ANC and all its outcomes on
the basis that there were irregularities in many of the branch meetings that
elected delegates to the Provincial Conference’.180 The Court had to hear
the case because section 19 of the Bill of Rights grants every citizen the
right to participate in the activities of a political party. The Court found that
it could therefore look into whether a political party had followed the
procedures prescribed by its own constitution.
Other disputes may well be capable of being resolved by the application
of law but will nevertheless not fall within the ambit of section 34. Thus,
section 34 does not apply to those aspects of criminal proceedings regulated
exhaustively by section 35 of the Constitution.181 Currie and De Waal
argue that the same applies to section 33 which regulates the conduct of
administrative action.182

CRITICAL THINKING

The difficulties faced by courts when dealing

with issues of a political nature
In Mazibuko Leader of the Opposition in the National
Assembly v Sisulu MP Speaker of the National Assembly
and Others,183 the Western Cape High Court considered
whether the National Assembly and its Speaker had erred
in not scheduling a debate on a vote of no confidence in
the President of the country which had been tabled by the
official opposition. The Court remarked in general about the
difficulties faced by a court when litigants approach a court
to resolve disputes of an essentially political nature.
Courts do not run the country, nor were they intended to govern the
country. Courts exist to police the constitutional boundaries, as I
have sketched them. Where the constitutional boundaries are
breached or transgressed, courts have a clear and express role;
and must then act without fear or favour. There is a danger in South
Africa, however, of the politicisation of the judiciary, drawing the
judiciary into every political dispute as if there is no other forum to
deal with a political impasse relating to policy or disputes which
clearly carry polycentric consequences beyond the scope of
adjudication. In the context of this dispute, judges cannot be
expected to dictate to parliament when and how it should arrange
its precise order of business matters. What courts can do, however,
is to say to parliament: ‘you must operate within a constitutionally
 compatible framework; you must give content to s 102 of the
Constitution; you cannot subvert this expressly formulated idea of
a motion of no confidence; however, how you allow that right to be
vindicated is for you to do, not for the courts to so determine’. I
regret the need to emphasise this point but it appears to me to be
vital to the future integrity of the judicial institution. An overreach
of the powers of judges – their intrusion into issues which are
beyond their competence or intended jurisdiction – which have
been deliberately and carefully constructed legally so as to ensure
that the other arms of the state deal with these matters, can only
result in jeopardy for our constitutional democracy. In this dispute I
am not prepared to create a juristocracy, and thus do more than
that which I am mandated to do in terms of our constitutional
model.184

This passage should not be interpreted to mean that the

right in section 34 to approach a court with a dispute about
any breach of the Constitution or ordinary law will
evaporate when the legal dispute – despite its political
overtones – remains a dispute that is capable of being
resolved by the application of law. If anybody, including the
legislature or any member of the executive, fails to comply
with a constitutional duty, the court will have the
responsibility to hear the dispute that may arise from such
a failure. The passage, however, serves as a warning for
especially political parties to be circumspect and to think
carefully before approaching a court with a dispute that –
while capable of legal resolution – is highly politicised.

15.4.3 Access to courts and other forums

Once the threshold set out above has been met, the right in section 34
comes into operation and protects individuals from both direct and more
subtle attempts by the state to prevent their accessing courts to have their
legal disputes resolved. This right contains both a negative obligation and a
positive obligation which, in accordance with section 7(2) of the
Constitution, place a duty on the state to ‘respect, protect, promote and
fulfil’ all the rights in the Bill of Rights. Where the state places stumbling
blocks in the path of a potential litigant that makes it more difficult or even
impossible for the potential litigant to access courts, the right will be
infringed. Similarly, where the state fails to take positive steps to create,
maintain and finance the court system, it will be potentially infringing its
positive obligation to protect, promote and fulfil this right.
However, note that section 34 does not entitle a potential litigant to
approach any court he or she chooses: a litigant cannot normally, for
example, directly approach the Constitutional Court.185 The rules of
jurisdiction in civil proceedings are therefore not an obstacle to access to
courts as long as these rules allow the potential litigant to approach some
court which has the requisite jurisdiction.186 Section 34 does not create a
right to a specific decision by the court either.187

15.4.3.1 A positive obligation on the state

The question arises whether the state has a positive duty not only to create,
maintain and finance courts and tribunals, but also whether the state has the
duty to provide individuals with the means that would allow them to access
courts and other tribunals. Given the limited state resources, it is not clear
whether the Constitutional Court would make such a finding. However, the
North Gauteng High Court found in Magidiwana and Another v President
of the Republic of South Africa and Others,188 in the context of that
specific case, that such a duty could arise even though the case dealt with a
commission of enquiry.
What is clear is that the state does have a positive duty to enhance access
to justice through legislative and other measures. Thus, the legislature is
mandated to ensure the impartiality and efficiency of the courts and their
accessibility via legislative measures. Where the legislature and the
executive fail to take measures, legislative or otherwise, to ensure that the
orders of a court are obeyed, for example, this may constitute a failure on
the state to respect its positive duties in relation to access to courts. The
state is also required to take heed of orders made by courts and to change
the manner in which it deals with issues if instructed to do so.189

15.4.3.2 The prohibition of self-help

One of the reasons why access to courts is so important is that such access
provides a structured mechanism though which disputes can be resolved
and helps to prevent lawlessness and self-help which is anathema to the rule
of law. In Lesapo, the Constitutional Court stressed the need for this
institutionalising of the resolution of disputes and preventing remedies
being sought through self-help. A trial or hearing before a court or tribunal
is therefore not an end in itself. It is a means of determining whether a legal
obligation exists and whether the coercive power of the state can be
invoked to enforce an obligation or to prevent an unlawful act being
committed. No one is entitled to take the law into his or her own hands.
Self-help, in this sense, is inimical to a society in which the rule of law
prevails. Taking the law into one’s own hands is thus inconsistent with the
fundamental principles of our law.190 It is in this context that the rule
against self-help and its importance come into focus. As the Constitutional
Court stated in Lesapo:
This rule against self-help is necessary for the protection
of the individual against arbitrary and subjective
decisions and conduct of an adversary. It is a guarantee
against partiality and the consequent injustice that may
arise. … It is to emphasise and protect generally, but also
specifically for the protection of the individual, the
separation of powers, particularly the separation of the
Judiciary from the other arms of the State. … [B]y
ensuring that the courts and other fora which settle
justiciable disputes are independent and impartial [it
achieves these goals]. It is a provision fundamental to the
upholding of the rule of law, the constitutional State, the
‘regstaat idee’ …191

15.4.3.3 Does a commission of enquiry constitute an

independent and impartial tribunal?
Section 34 provides for the right to have any dispute that can be resolved by
the application of the law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or forum. It
is unclear whether judicial commissions of enquiry could be considered to
constitute independent or impartial tribunals and whether the term ‘dispute’
applies to matters considered by such commissions of enquiry.
It may be considered that commissions of enquiry are fact-finding
tribunals. As such, they do not concern themselves with justiciable matters
where their adjudication may bring an end to a dispute. According to this
view, a ‘commission is merely investigative in nature with a view to making
recommendations to the President’.192 If we agree with this view,
section 34 would not find application to commissions of enquiry.193
In Magidiwana, the North Gauteng High Court had to determine whether
the affected surviving miners were entitled to legal representation at state
expense before the commission of enquiry into the Marikana massacre in
which 34 miners were killed by the police. The Court held that the
commission of enquiry fell within the scope of section 34 despite the fact
that the commission was not of a judicial or quasi-judicial nature:
At conceptual level, the general proposition that the
proceedings of commissions of inquiry fall outside the
scope of s 34 at the outset, is, to my mind, an over-
simplification of a complex situation involving
constitutional rights and a distinct possibility of those
rights being adversely affected by the outcome of the
commission. A preferable view is that the right to legal
representation at commissions is not an absolute one, but
depends on the context. Counsel for Ledingoane family
asserted that the right arises in the following
circumstances:
(a) when the nature and type of inquiry demands that
some or all interested parties be legally represented;
(b) when the interests of justice and the rule of law
would be undermined by a failure to uphold the
right;
(c) when the constitutional rights of parties or witnesses
appearing before a commission are implicated or
 potentially threatened.194

15.5 Labour relations

15.5.1 Introduction
The relationship between an employer and an employee is based on a
contract of employment which has traditionally been regulated by the
common law. Unfortunately, the common law principles governing
employment contracts do not recognise the unequal power relations that
exist between employers and employees and the fact that they are not in an
equal bargaining position. This is, in fact, also the case when individuals
enter into contracts with economically powerful institutions, be it banks,
cell phone companies or furniture stores. In addition, these common law
principles also do not recognise the relationships brought about by the rise
of trade unions nor do they facilitate the acquisition of rights through
collective bargaining.195
To address these shortcomings, Parliament has intervened on numerous
occasions and passed legislation aimed at establishing basic conditions of
employment, introducing principles of equity and fairness, and promoting
collective bargaining. As a result of these interventions, the employment
relationship today is regulated largely by legislation and the rights and
obligations acquired through collective bargaining.
Among the most important statutes regulating the employment
relationship are the Labour Relations Act (LRA),196 the Basic Conditions
of Employment Act (BCEA) 197 and the Employment Equity Act
(EEA).198 These Acts all aim to give effect to various aspects of the rights
guaranteed in section 23 of the Constitution which provides that:
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right –
(a) to form and join a trade union;
(b) to participate in the activities and programmes
of a trade union; and
 (c) to strike.
(3) Every employer has the right –
(a) to form and join an employers’ organization;
and
(b) to participate in the activities and programmes
of an employers’ organization.
(4) Every trade union and every employers’
organization has the right –
(a) to determine its own administration,
programmes and activities;
(b) to organize; and
(c) to form and join a federation.
(5) Every trade union, employers’ organization and
employer has the right to engage in collective
bargaining. National legislation may be enacted to
regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
(6) National legislation may recognize union security
arrangements contained in collective agreements. To
the extent that the legislation may limit a right in this
Chapter, the limitation must comply with
section 36(1).
As is the case with other rights, the principle of subsidiarity requires that
litigants rely first on the provisions of the various Acts that give effect to
the rights contained in the Constitution before they can rely on the rights
contained in the Constitution itself.

PAUSE FOR REFLECTION

Regulating the unequal power relationship

between employers and employees
The LRA is the national legislation referred to in
sections 23(5) and (6) of the Constitution. The stated
purpose of the LRA is to advance economic development
and social justice, to maintain industrial peace, to regulate
the work environment and to provide processes to deal
with disputes that arise. At the heart of the LRA is an
assumption that employment relationships contain an
inherently unequal power relationship between employers
and employees. These relationships require special legal
regulation to protect usually weaker employees and to
provide them with an easy and cheap mechanism to
enforce their rights. In essence, achieving fairness in
employment relationships is the ultimate aim of the LRA.
According to Grogan, the main features of the LRA are
as follows:
• The LRA encourages collective bargaining and the
settlement of disputes by enhancing the powers of the
forums that have been set up to achieve these objects.
• The broad definition of an unfair labour practice in the
1956 Labour Relations Act has been replaced with
specific rules and rights, all of which are justiciable in the
Commission for Conciliation, Arbitration and Mediation
(CCMA).
• The CCMA has both mediation and arbitration functions.
All labour disputes must be processed through it unless
the parties are subject to a collective agreement which
makes provision for private arbitration.
• Disputes which cannot be settled by mediation are
referred to arbitration either by a commission, an
arbitrator or a judge of the Labour Court depending on
the nature of the proceedings.
• Arbitration proceedings are meant to be expeditious and
subsequently reviewable and not appealable.
• The LRA affords employees the freedom to strike if they
comply with the requirements of the Act.
• Trade unions are given specific rights to organise.
• The LRA regulates bargaining councils whose key
function is to facilitate the collective bargaining process.
 Collective bargaining refers to the negotiations and
interactions between employers and workers aimed at
preventing or settling disputes.199

In National Union of Metal Workers of South Africa and Others v Bader

Bop (Pty) Ltd and Another, the Constitutional Court held that the rights
guaranteed in section 23 of the Constitution are aimed at creating a ‘fair
industrial relations environment’ and that collective bargaining between
employers and workers is one of the key mechanisms for achieving this
goal.200 The Court stated that:
In section 23, the Constitution recognises the importance
of ensuring fair labour relations. The entrenchment of
the right of workers to form and join trade unions and to
engage in strike action, as well as the right of trade
unions, employers and employer organisations to engage
in collective bargaining, illustrates that the Constitution
contemplates that collective bargaining between
employers and workers is key to a fair industrial
relations environment. This case concerns the right to
strike. That right is both of historical and
contemporaneous significance. In the first place, it is of
importance for the dignity of workers who in our
constitutional order may not be treated as coerced
employees. Secondly, it is through industrial action that
workers are able to assert bargaining power in industrial
relations. The right to strike is an important component
of a successful collective bargaining system. In
interpreting the rights in section 23, therefore, the
importance of those rights in promoting a fair working
environment must be understood. It is also important to
comprehend the dynamic nature of the wage-work
bargain and the context within which it takes place. Care
must be taken to avoid setting in constitutional concrete,
 principles governing that bargain which may become
obsolete or inappropriate as social and economic
conditions change.201
This paragraph provides a succinct description of the context within which
the labour relations regime must be judged and the considerations which
animate the proper operation of this regime. As is the case with other
aspects of the interpretation of the provisions of the Bill of Rights, the
Court emphasised the fact that such an interpretation and application occurs
in a specific (and potentially changing) context. This means that it is not
always easy to set down hard-and-fast rules.

15.5.2 The scope and ambit of section 23 of the

Constitution
Although the right to fair labour practices guaranteed in section 23(1) of the
Constitution applies to ‘everyone’, the other provisions of section 23 apply
to a much narrower category of persons, namely ‘workers’, ‘employers’,
‘trade unions’ and ‘employers’ organisations’.

CRITICAL THINKING

The meaning of ‘everyone’ in the right to fair

labour practices
Despite the fact that the right to fair labour practices
guaranteed in section 23(1) of the Constitution applies to
‘everyone’, Cheadle argues that – like the rights
guaranteed in sections 23(2) to (5) – it applies only to
workers, employers and their respective organisations.
This is because, he argues further, section 23(1) applies
only to those persons who are engaged in a ‘labour
practice’. A labour practice is one that arises from the
relationship between workers, employers and their
respective organisations. The right to a fair labour practice
should not be read as extending the class of persons
 beyond those classes envisaged by the section as a
whole.202
It is also important to note that the reference to
‘everyone’ in section 23(1) of the Constitution includes both
workers and employers. In National Education Health &
Allied Workers Union (NEHAWU) v University of Cape
Town and Others,203 the applicant argued that the right to
fair labour practices applied to workers only because the
term ‘everyone’ referred to human beings and not to juristic
persons. The Constitutional Court, however, rejected this
argument. In arriving at its conclusion, the Court held that:
Where the rights in the section are guaranteed to workers or
employers or trade unions or employers’ organisations as the case
may be, the Constitution says so explicitly. If the rights in s 23(1)
were to be guaranteed to workers only, the Constitution would have
said so. The basic flaw in the applicant’s submission is that it
assumes that all employers are juristic persons. That is not so. In
addition section 23(1) must apply either to all employers or none. It
should make no difference whether they are natural or juristic
persons.204

While it is fairly clear what is meant by the terms ‘employer’, ‘trade union’
and ‘employers organisation’, it is less clear what is meant by the term
‘worker’. The Constitutional Court, however, considered the meaning of the
term in its judgment in South African National Defence Union v Minister of
Defence.205
In this case, the applicant applied for an order declaring section 126B(1)
of the Defence Act 206 to be unconstitutional and invalid on the grounds
that it infringed section 23(2) of the Constitution. Section 126B(1) of the
Defence Act prohibited permanent members of the South African National
Defence Force (SANDF) from joining or becoming members of a trade
union. Section 23(2) of the Constitution provides that that ‘[e]very worker
has the right (a) to form and join a trade union; (b) to participate in the
activities and programmes of a trade union, and (c) to strike’.
 Given that section 23(2) of the Constitution applies only to workers, the
first issue the Constitutional Court had to consider was whether the word
‘worker’ was wide enough to include permanent members of the SANDF.
The Court held that it was.
In arriving at this decision, the Constitutional Court began by explaining
that permanent members of the SANDF receive many of the same benefits
as other employees, for example a salary, leave, medical and transport
benefits, and certain mess expenses.207 In addition, the Constitutional
Court explained further, the International Labour Organisation considers
members of the armed forces to be workers for the purposes of the
Convention on the Freedom of Association and Protection of the Right to
Organise 87 of 1948 and the Convention on the Right to Organise and
Collective Bargaining 98 of 1949, both of which South Africa has
ratified.208
Even though permanent members of the SANDF are not employees in
the full contractual sense of the word, the Constitutional Court went on to
conclude, the factors set out above indicated that the relationship between
permanent members of the SANDF and the SANDF itself was ‘akin to an
employment relationship’ and ‘in many respects mirrors those of people
employed under a contract of employment’.209 Although members of the
SANDF may be thought to be in a special kind of situation because there is
a requirement that members of the armed forces must adhere to strict
discipline,210 the term ‘worker’ nevertheless had to be given a generous
interpretation. The need for strict discipline will not necessarily be
undermined by holding that members of the SANDF constitute ‘workers’
for the purpose of section 23(2) ‘because in appropriate circumstances
rights may be limited’.211 After coming to the conclusion that the word
‘worker’ was wide enough to include permanent members of the SANDF,
the Constitutional Court went on to find that section 126B(1) of the
Defence Act did infringe section 23(2) of the Constitution.
A number of important consequences flow from the approach adopted by
the Constitutional Court in this case. Among these are the following:
• First, section 23 of the Constitution does not apply only to persons who
are in an employment relationship, but also to persons who are in a
 relationship that is ‘akin’ to an employment relationship. This means that
neither the existence of a contract nor the category of contract is strictly
necessary for a person who is performing work for another person to be
defined as a ‘worker’ for the purposes of section 23 of the Constitution.
• Second, the extension of labour rights beyond the limits of a contract of
employment is in keeping with the different forms of employment that
may be found in a modern economy. Among these are part-time
employees, temporary employees, casual employees, persons employed
through employment agencies, home workers and so on. These sorts of
employees are often vulnerable to exploitation because the nature of their
employment makes it difficult for them to form and join trade unions and
to bargain collectively.
• Third, while section 23 of the Constitution applies to persons who are in
an employment relationship or a relationship akin to an employment
relationship, it does not apply to everyone who works. This is because
not everyone who works is an employee or is akin to an employee.
People who own or work in their own businesses, such as independent
contractors, partners and self-employed people, for example, are not
employees nor are they akin to employees.

CRITICAL THINKING

What should be the defining characteristic of a

worker for the purposes of section 23 of the
Constitution?
Given that the concept of a worker in section 23 of the
Constitution is wider than the concept of an employee
under a contract of employment, but not as wide as the
concept of a person who owns and works in his or her own
business, the question arises as to who should be
protected by section 23. Cheadle argues in this respect
that the defining characteristic for deciding whether a
person is a worker for the purposes of section 23 should
not be whether the person has entered into a contract of
employment or a contract for services, but rather whether
the person has entered into a personal and dependent
work relationship or is genuinely running his or her own
business. In other words, if a person has entered into a
personal and dependent work relationship, he or she
should be classified as a worker for the purposes of
section 23 of the Constitution, but not if he or she is
genuinely running his or her own business.212
The personal and dependent nature of the work
relationship rather than the existence of a contract of
employment, he argues further, should be the defining
characteristic of a worker for the purposes of section 23 of
the Constitution for the following reasons:
• First, the provision of personal and dependent work
need not take the form of a contract of employment but
may be cast in the form of a contract of service.
• Second, a person who has entered into a personal and
dependent work relationship is more vulnerable to
exploitation than a person who genuinely owns and
works in his or her own business.
• Third, the purpose underlying section 23 of the
Constitution is to protect vulnerable workers from being
exploited in a way that is unfair.213
The personal and dependent nature of the work
relationship, Cheadle goes on to concede, may not always
provide a clear answer as to who is a worker for the
purposes of section 23 of the Constitution. This is because
there are certain categories of employees who are neither
dependent nor in need of protection, for example executive
directors, professional employees or employees with
special skills. It is consequently not clear whether these
categories of employees should be defined as workers for
the purposes of section 23 of the Constitution or not.214
While section 23 of the Constitution applies only to those persons who are
in an employment relationship or in a relationship akin to an employment
relationship, it is important to note that it does not apply only to those
persons who are in a lawful employment relationship. Instead, it also
applies to those persons who are in an unlawful employment relationship,
for example sex workers employed by a brothel.

PAUSE FOR REFLECTION

Applying section 23 to those persons who are in

an unlawful employment relationship
In Kylie v Commission for Conciliation, Mediation and
Arbitration,215 the appellant, who was a sex worker, was
dismissed by the owner of the massage parlour where she
worked without a prior hearing. After she was dismissed,
she referred her dismissal to the CCMA for arbitration.
Before any evidence was heard, however, the
Commissioner dismissed her application on the grounds
that the CCMA did not have jurisdiction to arbitrate this
matter because the appellant was engaged in an illegal
activity. In South African law, engaging in sex work as
either a client or as a sex worker is a criminal offence.
Kylie then applied to the Labour Court for an order
reviewing and setting aside the Commissioner’s decision.
The Labour Court, however, dismissed her appeal on the
grounds that by accepting jurisdiction, the Commissioner
would be sanctioning or encouraging illegal activities. In
addition, the Labour Court also held that the primary
remedy for an unfair dismissal is reinstatement and it
would be untenable for a court to order reinstatement to an
activity that was proscribed by law.
The appellant then appealed successfully to the Labour
Appeal Court. In arriving at its decision, the Labour Appeal
Court began by pointing out that the right to fair labour
practices guaranteed in section 23(1) of the Constitution
vests not only in those persons who are engaged in lawful
activities, but also those persons who are engaged in
unlawful activities such as sex workers.
This is because, the Labour Appeal Court pointed out
further, the reference to ‘everyone’ in section 23(1) of the
Constitution indicated that the scope of the right to fair
labour practices should be interpreted broadly. In addition,
it also indicated that the right to fair labour practices
applied to persons in employment relationships as well as
to persons in relationships that are akin to employment
relationships.216
It was also important to note, the Labour Appeal Court
went on to point out, that sex workers are not stripped of
their right to be treated with dignity by their employers
simply because they are engaged in illegal activities. Given
that section 23 of the Constitution, at its core, aims to
protect the dignity of those in employment relationships or
relationships akin to employment relationships, it follows
that section 23 must also apply to sex workers.217
Having found that the right to fair labour practices
guaranteed in section 23 of the Constitution vested in the
appellant, the Labour Appeal Court turned to consider the
question of a remedy.
In this respect, the Labour Appeal Court began by
explaining that where a person has performed in terms of
an illegal contract, the common law provides that he or she
is not allowed to recover his or her performance using an
enrichment-based remedy. This is known as the par
delictum rule. To prevent an injustice from occurring,
however, the courts have been given the power to relax the
par delictum rule and to allow a person to recover his or
her performance using an enrichment remedy.218
Given the flexible approach that the courts have adopted
towards illegal contracts in terms of the common law, the
 Labour Appeal Court explained further, there is no reason
in principle why the courts cannot adopt a flexible approach
towards illegal contracts in terms of section 23 of the
Constitution and the LRA. Courts should thus be able to
grant a remedy or some other form of protection, especially
in those cases where one of the parties forms part of a
vulnerable group, such as a sex worker.219
Although there is no reason in principle why the courts
cannot grant a remedy or some other form of protection in
terms of section 23 of the Constitution and the LRA where
one of the parties to an illegal contract forms part of a
vulnerable group, the Labour Appeal Court went on to
explain, this does not mean that a court can grant the full
range of remedies available in terms of the LRA. An order
reinstating a sex worker, for example, would violate the
criminal prohibition on prostitution. In these sorts of cases it
would be more appropriate to award the sex worker
compensation in the form of money.220 In light of these
considerations, the Labour Appeal Court concluded, there
is no doubt that the CCMA did have the jurisdiction to
consider the matter.
The approach in the Kylie case can be contrasted with
the more moralistic approach towards sex workers taken
by the majority of the Constitutional Court in S v Jordan
and Others (Sex Workers Education and Advocacy Task
Force and Others as Amici Curiae 221 discussed in
chapter 6. In that judgment the Constitutional Court in fact
stated that the ‘stigma that attaches to prostitutes attaches
to them not by virtue of their gender, but by virtue of the
conduct they engage in’ and declined to recognise the
law’s discriminatory effect on women.222

15.5.3 The right to fair labour practices

15.5.3.1 Introduction
Section 23(1) of the Constitution provides that ‘[e]veryone has a right to
fair labour practices’. The concept of a fair labour practice may be traced
back to the Wiehahn Commission. This Commission was appointed to
report on and make recommendations about existing labour legislation and
published its report in1979.223 The government accepted the report and
amended the 1956 Labour Relations Act 224 to give effect to the
Commission’s recommendations. The most significant of these amendments
was the extension of trade union rights to black employees, the introduction
of the concept of unfair labour practices and the establishment of a new
court to deal with labour disputes, namely the Industrial Court.
The 1956 Labour Relations Act defined the concept of an unfair labour
practice widely as ‘any labour practice which in the opinion of the
Industrial Court is an unfair labour practice’.225 This definition was
amended in 1982 to introduce a greater degree of specificity. It thus
provided that:
Unfair labour practice means any act or omission, other
than a strike or lock-out, which has the effect that –
(i) any employee or class of employees is or may be
unfairly affected or that his or their employment
opportunities, work security is or may be prejudiced
or jeopardised thereby;
(ii) the business of any employer or class of employers is
or may be unfairly affected or disrupted thereby;
(iii) labour unrest is or may be created or promoted
thereby;
(iv) the labour relationship between employer and
employee is or may be detrimentally affected
thereby.226
These definitions allowed the Industrial Court to ask not only whether a
decision was lawful or not, but also whether a lawful decision was
inequitable or unfair. They therefore conferred an equitable jurisdiction on
the Industrial Court. In other words, the Industrial Court could act not
simply as a court of law, but also as a court of equity. It could judge on a
case-by-case basis whether employees had been treated inequitably or
unfairly.
Many of the practices that the Industrial Court identified as unfair labour
practices were related to dismissals. In this respect, the Industrial Court
found, for example, that a decision to dismiss a worker that was
substantively unfair was an unfair labour practice and so was a decision to
dismiss a worker after following an unfair procedure.227
Apart from these practices, the Industrial Court also found that a failure
to renew a fixed-term contract, the dismissal of strikers during a lawful
strike, selective re-employment and the victimisation of workers who
engaged in trade union activities were unfair labour practices.228
When the 1956 Labour Relations Act was repealed by the 1995 LRA, the
definition contained in the 1956 Act was replaced with a number of
provisions that codified some of the practices the Industrial Court had
identified as unfair labour practices. Among the most important of these
codified provisions are those that regulate dismissals.

15.5.3.2 Unfair dismissals in terms of the Labour Relations

Act 66 of 1995
In so far as dismissals 229 are concerned, the LRA provides that a dismissal
is unfair if the employer fails to prove on a balance of probabilities that the
reason for the dismissal is a fair one and is related to the employee’s
conduct or capacity, or is based on the employer’s operational requirements,
and that the dismissal was effected in accordance with a fair procedure.230
An important consequence of this approach is that, in effect, the LRA
allows an employee to be dismissed only on the grounds of misconduct,
incapacity or for operational reasons.
Misconduct occurs when an employee breaches a rule of employment.
Most collective agreements incorporate codes of conduct which are binding
on the parties to the agreement. If a party to the collective agreement
breaches a provision of the code of conduct, he or she will be guilty of
misconduct. In addition, Schedule 8 of the LRA provides for a Code of
Good Practice: Dismissal. Item 2 of this Code provides that a dismissal will
be unfair if it is not effected for a fair reason and in accordance with a fair
procedure even if it complies with a notice period stipulated in a contract.
The LRA deems certain dismissals to be automatically unfair.
Section 187 of the LRA provides in this respect that a dismissal is
automatically unfair if the reason for the dismissal is:
(i) that the employee participated in a protected strike;
(ii) that the employee is pregnant or intends to fall
pregnant; or
(iii) that the employer unfairly discriminated against the
employee, directly or indirectly, on any arbitrary
ground, including, but not limited to, race, gender,
sex, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family
responsibility.
Dismissal for incapacity relates to an inability to perform the functions of
the job. The Code of Good Practice: Dismissals draws a distinction between
a dismissal for poor work performance 231 and a dismissal because of ill
health or injury.232
A dismissal for poor work performance will be fair if the employee fails
to meet the standard set by the employer and was aware or could reasonably
be expected to be aware of the standard. In addition, the employer must
give the employee a fair opportunity to meet the standard and dismissal
must be an appropriate sanction.
In respect of dismissal because of ill health or injury, the employer must
make a determination as to whether it is temporary or permanent. The
employer must also determine the length of time that the employee is likely
to be incapacitated and must investigate possible alternatives, short of
dismissal. Relevant factors to consider in determining whether alternatives
to dismissal are feasible include the nature of the job, the period of absence,
the seriousness of the illness or injury, and the possibility of securing a
temporary replacement for the ill or injured employee.233
 Operational requirements relate to the economic, technological,
structural or similar needs of the employer. If the business has to be
restructured and the staff complement reduced as a consequence of an
economic downturn, then the employer may dismiss employees for
operational reasons. The Code of Good Practice issued in terms of the LRA
234 categorises this as a ‘no fault dismissal’. The Code obliges employers
to consider all possible alternatives to dismissal. The employer is also
obliged to consult with the workers in good faith.
The employer must adopt fair criteria in determining who is to be
dismissed and generally the last in first out principle must be used.
Employees dismissed on the basis of operational reasons are entitled to
severance pay of at least one week’s remuneration for each year of
continuous service. Employees dismissed for operational reasons must be
given preference if the employer hires employees again.
Apart from the requirements set out above, all dismissals must be carried
out in accordance with a fair procedure.235 This is an independent
requirement and a dismissal that is procedurally unfair will be deemed to be
an unfair dismissal even if there are good reasons for the dismissal. The
requirements of procedural fairness depend on the circumstances of the
case. The seriousness of the consequences for the affected employee and the
nature of the matter will determine the nature of the process to be followed.
Finally, it is important to note that the employer must give timely notice
of the pending disciplinary hearing and must provide sufficient detail of the
gist of the case against the employee in a form that the employee
understands. The employee must be permitted to be represented by a co-
worker or union representative. The employee must be given a reasonable
opportunity to dispute the case against him or her and be allowed to put his
or her version before an independent person. This includes challenging
witnesses and calling witnesses on his or her behalf. Finally, the person
making the decision must provide reasons for his or her conclusion.236

15.5.3.3 Unfair labour practices in terms of the LRA

Apart from codifying some of the practices that the Industrial Court had
identified as unfair labour practices, the 1995 LRA also contains a general
definition of an unfair labour practice. Section 186(2) of the LRA provides
in this respect that:
Unfair labour practice means any unfair act or omission
that arises between an employer and an employee
involving –
(a) unfair conduct by the employer relating to the
promotion, demotion, probation (excluding disputes
about dismissals for a reason relating to probation)
or training of an employee or relating to the
provision of benefits to an employee;
(b) the unfair suspension of an employee or any other
unfair disciplinary action short of dismissal in
respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-
employ a former employee in terms of any
agreement; and
(d) an occupational detriment, other than dismissal, in
contravention of the Protected Disclosures Act, 2000
(Act 26 of 2000), on account of the employee having
made a protected disclosure defined in that Act.
The act or omission complained of must be between an employee and his or
her employer and must not extend beyond the employment relationship. It
regulates the most important facets of the employment relationship such as
promotion, training, provision of benefits, suspensions, disciplinary action,
failure to reinstate in accordance with an agreement and actions in
contravention of the Protected Disclosures Act. Thus, an employee alleging
that he or she has been treated in a manner that contravenes section 186(2)
can use the procedures prescribed in the LRA to seek relief.

15.5.3.4 Unfair labour practices in terms of section 23(1) of

the Constitution
Given that the LRA deals extensively with the right to fair labour practices,
it is unlikely that the parties to a labour dispute will rely on the
constitutional right to institute a claim for an unfair labour practice. Despite
this fact, the Constitutional Court has discussed the scope and ambit of
section 23(1) of the Constitution on more than one occasion. While the
Labour Appeal Court and the Labour Court are responsible for overseeing
the interpretation and application of the LRA, this does not mean the
Constitutional Court has no role to play in the determination of fair labour
practices. ‘Indeed,’ said the Court, ‘it has a crucial role in ensuring that the
rights guaranteed in section 23(1) are honoured.’ 237
Thus in NEHAWU, for example, the Constitutional Court held that when
it comes to determining what amounts to a fair labour practice regard must
be had to what is fair to both sides.238 In addition, the Court held further
there must also be an appreciation of the inherent tensions in the
employee/employer relationship and an attempt must be made to
accommodate these differing concerns appropriately.239
The focus of section 23(1) is, broadly speaking, the relationship between
the worker and the employer and the continuation of that relationship on
terms that are fair to both. In giving content to that right, it is important to
bear in mind the tension between the interests of the workers and the
interests of the employers which is inherent in labour relations. Care must
therefore be taken to accommodate, where possible, these interests so as to
arrive at the balance required by the concept of fair labour practices.
The approach adopted in NEHAWU was confirmed in Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others.240 In this case, the
Court decided that a commissioner did not have to defer to an employer’s
decision on sanctions. In arriving at this decision, the Court said:
Neither the Constitution nor the LRA affords any
preferential status to the employer’s view of the fairness
of the dismissal. It is against constitutional norms and
against the right to fair labour practices to give pre-
eminence to the views of either party to a dispute.
Dismissal disputes are often emotionally charged. It is
therefore all the more important that a scrupulous even-
handedness be maintained. The approach of the
 Supreme Court of Appeal tilts the balance against
employees.241
In NEHAWU, the Constitutional Court also recognised that fairness is
incapable of precise definition, especially in light of the tension that exists
between the interests of workers and the interests of employers. It is
accordingly a value judgment which depends on the circumstances of each
case.
Our Constitution is unique in constitutionalising the right to fair labour
practice. However, the concept is not defined in the Constitution. The
concept of fair labour practice is incapable of precise definition. This
problem is confounded by the tension between the interests of the workers
and the interests of the employers that is inherent in labour relations.
Indeed, what is fair depends on the circumstances of a particular case and
essentially involves a value judgment. It is therefore neither necessary nor
desirable to define the concept.242

15.5.4 The right of every worker to form and join a

trade union
Given the unequal power of individual workers/employees on the one hand
and employers on the other hand, the right of workers to form trade unions
that can protect the interests of individual workers is a pivotal aspect of a
fair labour relations regime. Section 23(2)(a) of the Constitution provides
that ‘[e]very worker has the right (a) to form and join a trade union’. Taken
together with section 23(3)(a) of the Constitution, which provides that
‘[e]very employer has the right to form and join an employers’
organisation’, this right gives effect to the right to freedom of association in
a labour context.

PAUSE FOR REFLECTION

Was the Constitutional Court correct when it

held that the total ban on trade unions in the
SANDF was unconstitutional and invalid?
As we have already seen in South African National
Defence Union, the Constitutional Court found that
section 126B(1) of the Defence Act, which prohibited
members of the SANDF from joining or becoming
members of a trade union, infringed the right to join a trade
union guaranteed in section 23(2) of the Constitution. After
coming to this conclusion, the Constitutional Court had to
consider whether the infringement was reasonable and
justifiable in terms of the limitation clause.
In this respect, the Minister argued that section 126B(1)
of the Defence Act was necessary to maintain a disciplined
military force. If soldiers were allowed to join a union,
bargain collectively and subsequently to strike, the Minister
argued further, military discipline would be seriously and
adversely affected and this would have grave
consequences for the security of the country.243
In response, the applicant argued that granting
permanent members of the SANDF the right to join a union
would not affect military discipline and weaken the combat
readiness of the SANDF because it was not claiming the
right to strike, but simply the right to join or form a trade
union and to bargain collectively. A trade union, the
applicant argued further, could function and further the
interests of its members without participating in strike
action.244
The Constitutional Court pointed out that while the state
is clearly entitled to take steps to achieve the legitimate
constitutional goal of maintaining a disciplined and effective
defence force, there is no evidence to suggest that
permitting permanent members of the SANDF to join a
trade union, no matter how its activities are circumscribed,
will undermine the discipline and efficiency of the
SANDF.245
 Given this conclusion, the Court found that the total ban
on trade unions in the SANDF went beyond what is
reasonable and justifiable to achieve the legitimate state
objective of a disciplined and effective military force. Such
a ban could not therefore be justified in terms of the
limitation clause and section 126B(1) of the Defence Act
had to be declared unconstitutional and invalid.246
The mere fact that trade unions are entitled to operate in
the SANDF does not mean, however, the Constitutional
Court also observed, that they should enjoy the same
rights and powers as all other trade unions. A trade union
operating in the SANDF may be subject to controls and
restrictions aimed at achieving military discipline and
efficiency provided these controls and restrictions satisfy
the requirements of the limitation clause.247
In 2009, approximately 1 000 disgruntled members of
the SANDF participated in an illegal march on the Union
Buildings in Pretoria demanding better salaries.
Unfortunately, the march turned violent and the police had
to use water cannon, rubber bullets and teargas to
disperse the soldiers. The following day, the Minister of
Defence, Ms Lindiwe Sisulu called the march ‘a serious
and immediate threat to national security’.248 The
Minister’s comments were premised on the idea that the
existence of a trade union in the defence force was by its
very nature problematic and potentially threatened the
national security of the country.
The question arises whether the Constitutional Court
was correct when it held that the total ban on trade unions
in the SANDF was unconstitutional and invalid. Did the
Court err when it made this decision or is there is a
distinction between the general principle – that trade
unions should be allowed in the armed forces – and the
specific rogue actions of the soldiers involved in the
incident described above?
A trade union is defined in the LRA as ‘an association of employees whose
principle purpose is to regulate relations between employees and
employers, including any employers’ organisation’.249 Chapter II of the
LRA regulates the right of every worker to form and join a trade union.
Section 2 of the LRA provides in this respect as follows:
A trade union is defined in the LRA as ‘an association of employees whose
principle purpose is to regulate relations between employees and
employers, including any employers’ organisation’.249 Chapter II of the
LRA regulates the right of every worker to form and join a trade union.
Section 2 of the LRA provides in this respect as follows:
(1) Every employee has the right –
(a) to participate in forming a trade union or
federation of trade unions; and
(b) to join a trade union, subject to its constitution.
(2) Every member of a trade union has the right, subject
to the constitution of that trade union –
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-
bearers, officials or trade union representatives;
(c) to stand for election and be eligible for
appointment as an office-bearer or official and, if
elected or appointed, to hold office; and
(d) to stand for election and be eligible for
appointment as a trade union representative and,
if elected or appointed, to carry out the functions
of a trade union representative in terms of this
Act or any collective agreement.
(3) Every member of a trade union that is a member of a
federation of trade unions has the right, subject to
the constitution of that federation –
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-
bearers or officials; and
(c) to stand for election and be eligible for
appointment as an office-bearer or official and, if
elected or appointed to hold office.
Section 5 of the LRA protects the individual rights conferred on employees
by the Act.250 Chapter 2 of the LRA also confers somewhat similar rights
on employers. Section 6 provides in this respect as follows:
(1) Every employer has the right –
(a) to participate in forming an employers’
organisation or federation of employers’
organisations; and
(b) to join an employers’ organisation, subject to its
constitution.
(2) Every member of an employers’ organisation has the
right, subject to the constitution of that employers’
organisation –
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-
bearers or officials; and
(c) if –
(i) a natural person, to stand for election and
be eligible for appointment as an office-
bearer or official and, if elected or
appointed, to hold office;
(ii) if a juristic person, to have a
representative stand for election, and be
eligible for appointment, as an office-
bearer or official and, if elected or
appointed, to hold office.
(3) Every member of an employers’ organisation that is
a member of a federation of employers’
organisations has the right, subject to the
constitution of that federation –
(a) to participate in its lawful activities;
(b) to participate in the election of any of its office-
bearers or officials; and
(c) if –
(i) a natural person, to stand for election and
be eligible for appointment as an office-
bearer or official and, if elected or
appointed, to hold office; or
 (ii) if a juristic person, to have a
representative stand for election, and be
eligible for appointment, as an office-
bearer or official and, if elected or
appointed, to hold office.
Section 7 of the LRA protects the individual rights conferred on
employers by the Act.251

PAUSE FOR REFLECTION

Do closed shop and agency shop agreements

infringe the right to freedom of association?
Sections 25 and 26 of the LRA make provision for so-
called closed shop and agency shop agreements. A closed
shop agreement is a collective agreement entered into by a
majority union and an employer or employers organisation.
The agreement provides that all employees covered by the
agreement must become members of the majority trade
union. An employee who refuses to join the majority union
or who is refused membership may be dismissed.252 An
agency shop agreement is a collective agreement entered
into by a majority union and an employer or employers
organisation. This agreement does not compel all
employees to become members of the majority union, but
does require non-members to contribute an agency fee to
the majority union as a condition of employment.253
A difficult question that arises in respect of these
agreements is whether they infringe the right to freedom of
association and, in particular, the right not to associate
guaranteed in section 23(2)(a) of the Constitution and
section 4 of the LRA. To answer this question, Du Toit
suggests that a two-stage enquiry should be adopted:
 The first question is whether, in fact, the closed shop provision
does limit the right to freedom of association in a constitutional
sense. This involves examining whether any formal limitation of the
above rights by a closed shop agreement is outweighed by its
promotion of other basic rights contained in the Constitution,
notably the right of trade unions to engage in collective bargaining.
Through ‘internal balancing’ of these related rights, it may be
concluded that section 26 in a substantive sense reinforces rather
than limits those rights. If, on the other hand, it is found to be a
limitation, the second question is whether it can be justified in
terms of section 36 of the Constitution.254

15.5.5 The right of every worker to participate in the

activities and programmes of a trade union
Section 23(2)(b) provides that ‘[e]very worker has the right to participate in
the activities and programmes of a trade union’. Taken together with
section 23(3)(b), which provides that ‘[e]very employer has the right to
participate in the activities and programmes of an employers’ organization’,
these rights give effect to the right to organise. Organisational rights make it
possible for trade unions to recruit members, to interact and engage with
them in the workplace, to elect union representatives, to access certain
information for the purposes of collective bargaining, to maintain financial
stability, and thus ultimately to promote the system of collective
bargaining.255 The LRA grants unions several organisational rights
designed to ensure that they are able to compete for members, remain
financially stable and perform their day-to-day functions. These
organisational rights contained in the LRA therefore aim to give substance
to the general rights conferred on unions by the Constitution.256
Chapter 3 of the LRA regulates the organisational rights of trade unions.
These organisational rights may be divided into five categories, namely:
• trade union access to the workplace 257
• deductions of trade union subscriptions 258
• election of trade union representatives 259
• leave for trade union activities 260
• disclosure of information.261
As its name suggests, the right of trade union access to the workplace
provides that trade union officials may have access to an employer’s
premises for purposes of recruiting members, communicating with them or
for holding meetings outside working hours.
The right to deductions of trade union subscriptions provides that
members of trade unions may authorise their employers to deduct their
trade union subscriptions from their salaries and remit the subscriptions to
the trade unions.
The right to elect trade union representatives provides for the recognition
of elected shop stewards for certain purposes, most importantly, perhaps, to
represent trade union members in grievance and disciplinary proceedings.
The right to leave for trade union activities provides that employees who
are union office bearers are entitled to reasonable amounts of time off
during working hours to attend to union business.
The right to disclosure of information provides that a union may require
the disclosure of certain information.

PAUSE FOR REFLECTION

Is a minority union entitled to take lawful strike

action?
Section 11 of the LRA provides that a trade union may only
claim the organisational rights set out in sections 12, 13
and 15 of the Act if it is ‘sufficiently representative’ of the
employees employed by an employer in a workplace.
Sections 14(1) and 16(1) provide that a trade union may
only claim the organisational rights set out in sections 14
and 16 respectively if it has as members a majority of the
employees employed by an employer in a workplace. This
means the LRA only confers organisational rights on
unions which can demonstrate at least the minimum
threshold of support. This does not mean that minority
 unions will never acquire these rights. They can do so with
the employer’s support or by demonstrating support
through strike action. This was confirmed in NUMSA.
In this case, the Constitutional Court held that while the
organisational rights set out in sections 12 to 16 of the LRA
may be claimed as a right only by a representative trade
union, there is nothing to prevent other trade unions from
obtaining organisational rights through other means,
including industrial action. In doing so, the Court relied on
international law precedent and identified two important
principles:
• First, the Court said that organisational rights are closely
associated with the right to freedom of association,
which is ordinarily interpreted to afford unions the right to
recruit members and to represent those members at
least in individual workplace grievances. Also, unions
should have the right to strike to enforce collective
bargaining demands.
• Second, it must be assumed that unions have the right
to take industrial action to pursue their demands.262
In this case, the key issue the Constitutional Court had to
decide was whether a minority union and its members
were entitled to take lawful strike action to persuade an
employer to recognise its shop stewards. The Court held
that they were.

15.5.6 The right of every worker to strike

Section 23(2)(c) of the Constitution provides that ‘[e]very worker has the
right to strike’. The right to strike occurs when workers withhold their
labour in an effort to pressurise an employer to accede to their demands. It
is recognised that the right to strike addresses the power imbalances and
allows for effective collective bargaining.
 In NUMSA, the Constitutional Court held that the right to strike is
important for two reasons:
• First, the right to strike protects the dignity of workers who, in our
constitutional order, may not be treated as coerced employees.
• Second, this right is an important component of a successful collective
bargaining system. This is because it is through industrial action that
workers are able to assert bargaining power in industrial relations.263
Section 213 of the LRA defines a strike as follows:
Strike means the partial or complete concerted refusal to
work, or the retardation or obstruction of work, by
persons who are or have been employed by the same
employer or by different employers, for the purpose of
remedying a grievance or resolving a dispute in respect
of any matter of mutual interest between employer and
employee, and every reference to ‘work’ in this definition
includes overtime work, whether it is voluntary or
compulsory.
The LRA regulates the right of every worker to strike. This section
prescribes the procedural and substantive requirements that must be met for
a strike to be lawful and protected. In so far as the procedural requirements
are concerned, section 64(1) of the LRA provides that every employee has
the right to strike and every employer has the recourse to lock-out if:
• the issue has been referred for conciliation either to a bargaining council
or to the CCMA and a certificate indicating that the parties are unable to
resolve the issues has been issued
• the employer, the Bargaining Council or the employers’ organisation has
been given at least 48 hours’ notice of the commencement of the strike,
in writing
• the employees, the trade union or the Bargaining Council has been given
at least 48 hours’ notice of the commencement of the lock-out, in
writing.
In those cases in which the state is the employer, at least seven days’ notice
of the commencement of the strike or lock-out must be given.264
 Section 64 also prescribes the circumstances when it is permissible to
depart from the statutory requirements listed above. These include cases in
which:
• the parties to the dispute are members of a bargaining council and the
dispute has been dealt with by that council
• the strike conforms to procedures in a collective agreement
• the strike is in response to an unlawful lock-out by the employer.

PAUSE FOR REFLECTION

Who is required to give notice of the

commencement of a strike?
Although section 64 of the LRA provides that an employer
must be given at least 48 hours’ notice of the
commencement of a strike in writing, it does not say who
should give this notice. The question of who is required to
give such a notice was considered by the Constitutional
Court in its judgment in South African Transport and Allied
Workers Union (SATAWU) and Others v Moloto NO and
Another.265
In this case, a company called Equity Aviation (Pty) Ltd
(Equity) employed 1 157 people. Of these employees, 725
were members of the South African Transport and Allied
Workers Union (SATAWU). SATAWU was, therefore, the
majority union at Equity. On 13 November 2003, SATAWU
referred a wage dispute to the CCMA for conciliation.
Unfortunately, this attempt at conciliation failed and on
15 December 2003 the CCMA issued a certificate to that
effect. On the same day, SATAWU issued a strike notice to
Equity in accordance with section 64(1)(b) of the LRA.
When the strike action commenced, however, members
not only of SATAWU but also of the other minority unions
represented at Equity joined the strike even though they
had not issued a strike notice in accordance with
section 64(1)(b). Given this failure, Equity warned the non-
SATAWU employees to return to work because it
considered their participation in the strike to be unlawful.
When they refused to return to work, Equity dismissed
them for unauthorised absence from work during the strike.
Section 64(1)(b) states that striking employees are
protected and cannot be fired if certain procedural
requirements are met, including the requirement that ‘at
least 48 hours’ notice of the commencement of the strike,
in writing, has been given to the employer’.
For the majority, the starting point of the enquiry was the
Constitution which protects the right to strike as a
fundamental right without expressly limiting this right. The
majority affirmed that constitutional rights conferred without
express limitation should not be cut down by interpreting
ambiguous legislative provisions as imposing implicit
limitations on them.266
As section 64(1)(b) contains no express requirement
that every employee who intends to participate in a
protected strike must personally or through a
representative give notice of the commencement of the
intended strike, nor that the notice must indicate who will
take part in the strike, it was sufficient that SATAWU had
given notice that it would strike. As the majority stated:
The point of departure in interpreting section 64(1) is that we
should not restrict the right to strike more than is expressly
required by the language of the provision, unless the purposes of
the Act and the section on ‘a proper interpretation of the statute …
imports them.’ The relevance of a restrictive approach is to raise a
cautionary flag against restricting the right more than is expressly
provided for. Intrusion into the right should only be as much as is
necessary to achieve the purpose of the provision and this requires
sensitivity to the constraints of the language used.267

It is an accepted interpretative principle in our constitutional

jurisprudence that if there is more than one interpretation of
a statutory provision that is constitutionally compliant, the
interpretation that best conforms with the spirit, purport and
objects of the Bill of Rights should be preferred. In this
case, the interpretation not requiring every non-unionised
member to give notice of their intention to take part in a
strike organised by a union best conforms to the spirit,
purport and object of the Bill of Rights.268
This becomes even more evident if we recall that the
right to strike is protected in the Constitution at least partly
in recognition of the fact that there are disparities in the
social and economic power held by employers and
employees. Employers have far more power than individual
employees and to redress the inequality in social and
economic power in employer/employee relations,
employees are granted the right to strike to even out the
playing field. To require individual employees to give
detailed information of not only when they will strike, but
how many of them will strike, ‘would run counter to the
underlying purpose of the right to strike in our Constitution
– to level the playing fields of economic and social power
already generally tilted in favour of employers’.269 As the
majority pointed out:
to hold otherwise would place a greater restriction on the right to
strike of non-unionised employees and minority union employees
than on majority union employees. It is these employees, much
more than those who are unionised or represented by a majority
union, who will feel the lash of a more onerous requirement. There
is no warrant for that where they were already denied the right to
bargain collectively on their own behalf in the preceding
process.270

The minority judgment took a more restrictive view of the

rights of strikers and is more closely aligned with the
interests of employers than with those of employees.
Focusing on the objects of the LRA instead of on the
relevant section in the Bill of Rights which guarantees
employees the right to strike, the minority found that
employers would be negatively affected if not all
employees were required either individually or through their
representatives to give notice to employers that they were
going to embark on a strike.271
In contrast to the majority view, which focused on the
imbalances in power between striking workers and their
employers, the minority seemed to assume that employers
were powerless in the face of a strike. Accordingly, the
minority claimed:
if a notice gives an employer no indication of which of its
employees might strike, it is nigh impossible to conceive how the
employer will prepare properly for the impending power play. How
will it make an informed decision as to whether or not to yield to
the employees’ demands? And, if it resists, how will it take proper
steps to protect its business, the employees and the public and
engage meaningfully in pre-strike regulatory discussions regarding
issues such as picketing rules? 272

The minority would therefore have reinterpreted the

relevant section of the LRA so as to require that employees
provide an employer with a notice:
that makes it possible for the employer to reasonably identify the
employees that may strike. And whilst this requirement may well
place a burden on the exercise of the right to strike, the
constitutionality of the provisions is not in the balance and it is
therefore unnecessary to resolve the question.273

The two judgments therefore seem to reflect rather stark

ideological differences between the judges on the
Constitutional Court as well as differences in how to view
the relationship between the provisions of the Bill of Rights,
on the one hand, and provisions of legislation giving effect
to those rights on the other.
The majority seems to be decidedly more progressive by
assuming that the right to strike contained in the Bill of
Rights should be limited as little as possible to ensure the
levelling of the playing field between employers and
 employees. They would therefore oppose an interpretation
of the legislation that would impose limitations on this right
unless such limitations are expressly stated in the LRA
itself.
The minority seems to be rather more sympathetic to
employers and less enthusiastic about protecting the rights
of striking workers. They are also more eager to interfere in
the work of the democratically elected Parliament by
reinterpreting legislation passed by that Parliament in such
a manner that it would limit the rights of workers even if
that was perhaps not what the democratically elected
Parliament intended to do.274

In so far as the substantive requirements that must be met for a strike to be

lawful are concerned, the LRA draws a distinction between disputes of
rights and disputes of interests.
Rights disputes revolve around the interpretation and application of
existing rights and are generally arbitrable through the bargaining councils
or through the labour courts.
Disputes of interest relate to proposed new terms and conditions of
employment. These disputes can be the subject of industrial action as
parties use either strike action or lock-out in an attempt to strengthen their
bargaining positions.

15.5.7 The right to engage in collective bargaining

15.5.7.1 Introduction
The right to strike, as well as the organisational rights of unions, must be
viewed in the light of the broader aims of unions and their members,
namely to engage in collective bargaining to improve the working
conditions of workers. The assumption is that workers will be more
powerful if they bargain collectively than if they bargain as individuals,
thus levelling the playing field. Section 23(5) of the Constitution provides
that ‘[e]very trade union, employers’ organization and employer has the
right to engage in collective bargaining. National legislation may be enacted
to regulate collective bargaining. To the extent that the legislation may limit
a right in this Chapter, the limitation must comply with section 36(1)’.
Grogan describes collective bargaining as the process:
by which employers and organised groups of employees
seek to reconcile their conflicting goals through mutual
accommodation. The dynamic of collective bargaining is
demand and concession; its objective is agreement.
Unlike mere consultation, therefore, collective
bargaining assumes willingness on each side not only to
listen and to consider the representations of the other but
also to abandon fixed positions where possible in order to
find common ground.275
Collective bargaining works best when the parties have relatively equal
bargaining power and when this happens in an atmosphere of mutual trust
and respect.

15.5.7.2 The right to engage in collective bargaining and

the LRA
The LRA does not impose a legally enforceable obligation on employers
and employees to engage in collective bargaining. However, it does seek to
promote and facilitate collective bargaining in terms of which employee
organisations and employers and employer organisations negotiate on
matters of mutual interest that concern their sector. The main purpose of
these negotiations is to preserve industrial peace. Much of these
negotiations occur in bargaining councils created for the various sectors and
areas. Thus there is a bargaining council for the local government sector as
there is for the metal and engineering industries, the motor industry and the
building industry. Bargaining councils have to be registered in terms of the
LRA.276

PAUSE FOR REFLECTION

The exclusion of a duty to bargain from the LRA
Prior to the enactment of the LRA in 1995, the Industrial
Court held that employers were legally required to
recognise representative trade unions and bargain with
them in certain circumstances. This duty to bargain,
however, was not absolute and arose only in those cases
in which an employer’s refusal to bargain could be
classified as an unfair labour practice. To determine
whether an employer’s refusal to bargain was an unfair
labour practice, the Industrial Court took various factors
into account, such as the interests of the employer and the
interests of the employees.277
The drafters of the LRA, however, decided to adopt a
different approach and deliberately excluded any mention
of a duty to bargain from the definition of an unfair labour
practice. The reasons behind this decision are set out in
the Explanatory Memorandum to the Labour Relations Bill.
The Memorandum states that ‘[a] notable feature of the
draft Bill is the absence of any statutory duty to bargain. In
its deliberations on a revised system of collective
bargaining, the Task Team gave consideration to three
competing models’.278
The first of these models, the Memorandum states
further:
is a system of statutory compulsion, in which a duty to bargain is
underpinned by a statutory determination of the levels at which
bargaining should take place and the issues over which parties are
compelled to bargain. The second model is not dissimilar though
more flexible. It relies on intervention by the judiciary to determine
appropriate levels of bargaining and bargaining topics. The third
model, unanimously adopted by the Task Team, is one that allows
the parties, through the exercise of power, to determine their own
arrangements.

The exercise of power, or indeed persuasion, is given statutory

impetus by the draft Bill’s provision for organisational rights and a
 protected right to strike.279

As Van Niekerk points out, the approach adopted by the

Task Team involves a trade-off. On the one hand, there is a
voluntary system of collective bargaining, while on the
other hand there is a strong set of organisational rights for
registered trade unions, coupled with a right to strike over
recognition and bargaining demands.280

The functions of bargaining councils include the conclusion of collective

agreements, the enforcement of these collective agreements and the
prevention and resolution of labour disputes.281 Once agreements are
reached, they are regarded as collective agreements and are binding on all
parties to the bargaining council.282 Application can be made to the
Minister to extend the collective agreement to persons who are not party
(non-parties) to the bargaining council but who are employed in the sector
and area over which the bargaining council has jurisdiction.283
An application may be made if one or more of the registered trade unions
representing the majority of members and one or more of the employers’
organisations whose members employ the majority of employees that are
party to the bargaining council support the extension.284 In addition,
ministerial approval is dependent on whether the non-parties fall within the
scope of the bargaining council, on whether there exists an independent
body to grant exemptions to non-parties and if the terms of the agreement
do not discriminate against non-parties.
By extending collective agreements to non-parties, parity and uniformity
is maintained in that particular sector in respect of earnings, conditions of
service and issues of mutual interest. Non-parties aggrieved by their
inclusion are able to argue their cases before an independent person
appointed in terms of the collective agreement.

15.5.7.3 The right to engage in collective bargaining and

the Constitution
Although the LRA does not impose a legally enforceable obligation on
employers to engage in collective bargaining, it is not clear whether this
approach is consistent with the right to engage in collective bargaining
guaranteed in section 23(5) of the Constitution. In other words, it is not
clear whether section 23(5) of the Constitution imposes a legally
enforceable obligation on employers to engage in collective bargaining or
not.
According to Cheadle, the right to engage in collective bargaining may
be divided into three elements: 285
• First, there is the negative freedom to bargain collectively. This freedom
may be enforced against the state if it passes legislation that prohibits
collective bargaining or has the effect of prohibiting collective
bargaining. In addition, it may also be enforced against an employers’
organisation or trade union that, by collective agreement or by the
exercise of economic power, prevents employers and workers from
engaging in collective bargaining.286
• Second, there is the right to use economic power. In its judgment in
Certification of the Constitution of The Republic of South Africa,
1996,287 the Constitutional Court held that the right to bargain
collectively contained within it the right to exercise some economic
power against partners in collective bargaining, such as dismissal, the
employment of alternative or replacement labour, and the unilateral
implementation of new conditions of employment.288
• Third, there is the positive right to bargain collectively. This right may
be enforced against an employer or trade union which refuses to engage
in collective bargaining and is usually referred to by its correlative as the
duty to bargain. It is the most controversial element because it contains
an element of compulsion. In terms of this right, the state may compel
employers and trade unions to bargain collectively.289
While section 23(5) of the Constitution encompasses the negative freedom
to bargain collectively and the right to use economic power, Cheadle argues
that it does not include the positive right to bargain collectively for the
following three reasons:
• First, a duty to bargain is more than just a right as it involves policy
choices such as the form and level of collective bargaining. This results
in a complex system that requires a delicate balance to maintain it. To
impose a duty to bargain may tip the balance in favour of ‘unanticipated
and unfortunate effects’.290
• Second, international labour standards do not impose a duty to bargain.
The ILO Committee of Freedom of Association, for example, has held
that collective bargaining will only be effective if it assumes a voluntary
quality and does not entail recourse to compulsory measures which will
alter the voluntary nature of such bargaining.291
• Third, a careful examination of the words of section 23(5) of the
Constitution shows that it is restricted to a freedom to bargain
collectively and that the forms, processes, institutions and levels are
subject matters for the legislature.292
In South African National Defence Union v Minister of Defence and
Others,293 the SCA adopted the same approach as Cheadle. The Court held
that while the Constitution does recognise and protect the central role of
collective bargaining in our labour dispensation, it does not impose a legally
enforceable duty to bargain on employers and trade unions. Unfortunately,
the Constitutional Court did not find it necessary to decide whether the
Constitution imposes a legally enforceable duty to bargain in the same
case.294 It did, however, note that a legally enforceable duty to bargain
would draw the courts into controversial and difficult issues:
[I]t should be noted that were section 23(5) to establish a
justiciable duty to bargain, enforceable by either
employers or unions outside of a legislative framework to
regulate that duty, Courts may be drawn into a range of
controversial industrial relations issues. These issues
would include questions relating to the level at which
bargaining should take place (ie the level of the
workplace, at the level of an enterprise, or at industrial
level); the level of union membership required to give
rise to that duty; the topics of bargaining and the
 manner of bargaining. These are difficult issues, which
have been regulated in different ways in the recent past
in South Africa, as the general principles governing
labour relations in South Africa have changed several
times since the 1980s when the modern trade union
movement emerged.295

PAUSE FOR REFLECTION

Does section 23(5) of the Constitution impose a

legally enforceable duty to bargain on employers
and trade unions?
As pointed out above, both the SCA and the Constitutional
Court considered the question as to whether section 23(5)
of the Constitution imposes a legally enforceable duty to
bargain on employers and trade unions in their judgments
in the case of South African National Defence Union (II).
The facts of this case were as follows. After the
Constitutional Court declared section 126B(1) of the
Defence Act, which prohibited permanent members of the
SANDF from being members of a trade union,
unconstitutional and invalid in 1999,296 the Minister of
Defence issued regulations regulating labour relations in
the SANDF. These regulations were set out in Chapter 20
of the General Regulations of the South African National
Defence Force and the Reserve.
Chapter 20 provided, inter alia, that once a union could
prove that it had 5 000 SANDF members, it could apply to
be registered as a military trade union. Once a military
trade union could prove that it had 15 000 SANDF
members, it could apply for membership of the Military
Bargaining Council (MBC). The purpose of the MBC was to
negotiate and bargain collectively to reach agreement on
matters of mutual interest between the Department of
Defence and members represented by military trade
unions.
After the applicant, SANDU, was registered as a military
trade union and admitted to the MBC, a number of disputes
arose between it and the Department of Defence.
Unfortunately, the MBC was unable to resolve most of
these disputes. Following the postponement of a number of
meetings, SANDU wrote a letter to the Department in
which it threatened to engage in labour unrest unless its
demands were met.
In response, the Minister of Defence wrote a letter to
SANDU indicating that any industrial action by SANDU’s
members would be unlawful. He also called on SANDU to
withdraw its threat and stated that negotiations with
SANDU in the MBC would be suspended until it did so.
When SANDU received the Minister’s letter, it immediately
withdrew its threat and asked the Minister to resume
negotiations with it. The Minister, however, refused to do so
unless certain conditions were met.
Following the Minister’s refusal to resume negotiations
in the MBC, SANDU brought five different applications
against the Minister in the High Court. Two of these were
consolidated and heard by Van der Westhuizen J. A further
two were also consolidated and heard by Smit J and the
remaining application was heard by Bertelsman J. Some of
these applications dealt with the disputes that had arisen
between SANDU and the Department of Defence and
some of them dealt with the Minister’s decision to withdraw
from negotiations in the MBC.
In so far as the Minister’s decision to withdraw from
negotiations was concerned, SANDU argued in all three
cases that section 23(5) of the Constitution imposes a
legally enforceable duty to bargain on employers and that
the Minister’s decision was therefore unconstitutional and
invalid. Smit J and Bertelsman J accepted this argument
while Van der Westhuizen J rejected it. All three judgments
were then taken on appeal to the SCA.
The SCA rejected SANDU’s argument. The Court held
that section 23(5) does not impose a legally enforceable
duty to bargain on employers and that the Minister’s
decision was not therefore unconstitutional and invalid.
In its judgment, the SCA began by noting that the phrase
‘the right to engage in collective bargaining’ was open to at
least three possible interpretations:
It may mean that the contemplated national legislation to regulate
collective bargaining must provide for an employer or a union
called upon to bargain to comply with the demand on pain of being
ordered to do so. On the other hand it may mean that the envisaged
national legislation must provide the framework within which
employers, employers’ organisations and employees may bargain;
or it may mean no more than that no legislative or other
governmental act may effectively prohibit collective bargaining.297

When it comes to interpreting the rights guaranteed in the

Bill of Rights, the SCA noted further, section 39 of the
Constitution provides that a court, tribunal or forum must
promote the values that underlie an open and democratic
society based on human dignity, equality and freedom, that
it must consider international law and that it may consider
foreign law.298
In so far as international law is concerned, the SCA went
on to note, the ILO’s Convention on Freedom of
Association and Protection of the Right to Organise 1948
as well as its Conventions on the Right to Organise and
Collective Bargaining 1949, and on Collective Bargaining
1981, were all particularly helpful because they adopted a
voluntarist approach towards collective bargaining.299
Taking the approach adopted in these Conventions
together with the fact that both the interim Constitution and
the LRA adopted a voluntarist approach to collective
bargaining,300 the SCA held that it was quite clear that
while the Constitution recognises and protects collective
bargaining, it does not impose a legally enforceable duty to
bargain on employers or employees.301
After losing in the SCA, SANDU appealed to the
Constitutional Court. Unfortunately, the Constitutional Court
held that it was not necessary for it to consider whether
section 23(5) of the Constitution imposes a legally
enforceable duty to bargain on employers or employees.
This is because Chapter 20 was specifically enacted to
give effect to section 23(5) and in those cases in which
legislation has been enacted to give effect to a
constitutional right, and where the constitutional validity of
that legislation has not being challenged, a litigant may not
bypass that legislation and rely on the Constitution
directly.302
This means, the Constitutional Court held further, that:
a litigant who seeks to assert his or her right to engage in collective
bargaining under section 23(5) should in the first place base his or
her case on any legislation enacted to regulate the right, not on
section 23(5). If the legislation is wanting in its protection of the
section 23(5) right in the litigant’s view, then that legislation should
be challenged constitutionally. To permit the litigant to ignore the
legislation and rely directly on the constitutional provision would
be to fail to recognise the important task conferred upon the
Legislature by the Constitution to respect, protect, promote and
fulfil the rights in the Bill of Rights.303

In light of these points, the Constitutional Court went on to

conclude, it was not necessary for it to decide whether
section 23(5) of the Constitution imposes a legally
enforceable duty to bargain on the Department of Defence.
Instead, it simply had to decide whether Chapter 20 of the
Regulations did so.304 Before turning to consider this
question, however, the Court warned that if section 23(5)
was interpreted in a manner that did impose a legally
enforceable duty to bargain on employers and trade unions
 outside any legislative framework, the courts would be
called on to decide a wide range of controversial and
difficult issues, such as the level at which bargaining
should take place (i.e. at the level of the workplace, at the
level of an enterprise, or at industry level); the level of
union membership required to give rise to the duty; the
topics of bargaining and the manner of bargaining. This
was clearly not desirable.305

SUMMARY

Some rights – the right to administrative justice, access to information,

access to courts and labour rights among them – enhance the democratic
nature of the state as they allow the exercise of many of the other rights in
an effective manner. These rights are partly aimed at equalling the playing
field by requiring the powerful to adhere to pre-announced rules, to act in a
relatively transparent manner and to share information, and to provide
individuals with access to courts which will assist them to enforce these and
other rights.
To prevent abuse of power in the exercise of discretionary powers, the
right to administrative justice guaranteed in section 33 of the Constitution
provides that these powers must be exercised in a manner that is lawful,
reasonable and procedurally fair. Courts are empowered to review such
decisions and to set them aside, not because they are substantively wrong
but because they do not conform to the requirements of administrative
justice. However, normally when challenging an administrative decision, a
litigant will not be able to rely on section 33 of the Constitution, but will
rather have to rely on the provisions of the Promotion of Administrative
Justice Act (PAJA) which was passed to give effect to section 33. After an
applicant has managed to show that the exercise of public power in question
falls into the ambit of an administrative action as defined by section 1 of the
PAJA, he or she is entitled to claim the administrative rights set out in the
PAJA. Among the most important of these administrative rights are the
following: the right to lawful administrative action; the right to reasonable
administrative action; the right to procedural fairness; and the right to be
given reasons for an administrative decision. The content of each of these
rights is described in detail in the relevant sections of the PAJA. It is
important for lawyers to familiarise themselves with these provisions of the
PAJA if they want to have an administrative action reviewed on any of the
grounds listed above.
The right of access to information is a pivotal right aimed at enhancing
the quality of democracy and protecting our country against the re-
establishment of a culture of secrecy that is anathema to open and
accountable government. Section 32 of the Constitution thus guarantees for
everyone the right of access to any information held by the state and any
information that is held by another person and that is required for the
exercise or protection of any rights. As is the case with the right to
administrative justice guaranteed in section 33, legislation – in this case the
Promotion of Access to Information Act (PAIA) – was passed to give effect
to the constitutional right. Normally when requesting access to information,
litigants will have to rely on the previsions of the PAIA and not on section
32 of the Constitution. The PAIA contains different rules for accessing
information held by the state and information held by private parties. As a
general rule, a requester must be given access to a record held by a public
body if the requester complies with all the procedural requirements set out
in the PAIA relating to a request for access to that record and access to that
record is not refused in terms of any ground for refusal as set out in the
PAIA. As general rule, a requester must be given access to records held by a
private body if that record is required for the exercise or protection of any
rights, that person complies with the procedural requirements set out in the
PAIA relating to a request for access to that record and access to that record
is not refused in terms of any ground for refusal set out in the PAIA.
However, the PAIA provides for an extensive list of exceptions which allow
a private or public body to refuse to provide access to the requested
information and it is important to study these exceptions carefully.
The right of access to court is a fundamental component of the rule of a
law in a constitutional democracy. Thus, section 34 of the Bill of Rights
states that ‘[e]veryone has the right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or forum’.
Some disputes, for example disputes of a purely moral or religious nature,
cannot be resolved by the application of law and individuals with such
disputes cannot rely on section 34 to gain access to a court for the purposes
of the court resolving their dispute. However, when a dispute can be
resolved by the application of law, then those involved in the dispute have
the right to approach a court although there is no general obligation on the
state to fund cases brought to court by individuals.
Section 23 of the Constitution recognises the importance of ensuring fair
labour relations and guarantees several rights for employees, employers and
trade unions. Section 23 provides not only that everyone has the right to fair
labour practices, but also that every worker has the right to join a trade
union, that every employer has the right to join an employers’ organisation
and that every trade union, employers’ organisation and employer has the
right to engage in collective bargaining. The rights contained in section 23
of the Bill of Rights are largely given effect to in various pieces of
legislation, most notably the Labour Relations Act (LRA), the Basic
Conditions of Employment Act (BCEA) and the Employment Equity Act
(EEA). Litigants with a labour law dispute will normally have to rely on
these Acts and not directly on the Constitution when they approach a court.
A litigant who wishes to approach a court with a labour related issue will
have to make a detailed study of the relevant provisions of the applicable
Act.

1 Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 645.
2 See, for example, Dyzenhaus, D (1991) Hard Cases in Wicked Legal Systems: South African
Law in the Perspective of Legal Philosophy.
3 Baxter, L (1984) Administrative Law 3.
4 S 24 of the interim Constitution provided that
[e]very person shall have the right to –
(a) lawful administrative action where any of his or her rights or interests is
affected or threatened;
(b) procedurally fair administrative action where any of his or her legitimate
expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action which affects any
of his or her rights or interests unless the reasons for such action have been
made public; and
(d) administrative action which is justifiable in relation to the reasons given for it
where any of his or her rights is affected or threatened.
5 S 33(1) of the Constitution.
6 S 33(2) of the Constitution.
7 Kohn, L and Corder, H (2013) ‘Judicial regulation of administrative action’ International
Encyclopaedia of Laws available at http://www.ielaws.com/index.htm.
8 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1
Constitutional Law 37.
9 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000)
para 45.
10 Kohn and Corder (2013).
11 Plasket, C (2007) Post-1994 administrative law in South Africa: The Constitution, the
Promotion of Administrative Justice Act 3 of 2000 and the common law Speculum Juris
21(1):25–40 at 25.
12 S 33(3) of the Constitution.
13 Act 3 of 2000.
14 Pharmaceutical Manufacturers para 33.
15 Pharmaceutical Manufacturers para 44.
16 (CCT 59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC)
(30 September 2005) paras 96–6. See also Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) para 22; Walele v City of Cape Town
(CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June
2008) para 29.
17 New Clicks SA paras 95–6.
18 Currie and De Waal (2013) 649.
19 Currie and De Waal (2013) 650–1.
20 See, for example, Ismail v New National Party in the Western Cape and Others (2001) JOL
8206 (C).
21 See Currie and De Waal (2013) 651.
22 See, for example, Bato Star Fishing para 22 where O’Regan stated that:
The common law informs the provisions of PAJA and the Constitution, and derives
its force from the latter. The extent to which the common law remains relevant to
administrative review will have to be developed on a case-by-case basis as the
courts interpret and apply the provisions of PAJA and the Constitution.
23 Act 4 of 2000.
24 Kaunda and Others v President of the Republic of South Africa (CCT 23/04) [2004] ZACC 5;
2005 (4) SA 235 (CC); 2004 (10) BCLR 1009 (CC) (4 August 2004) para 244.
25 S 79(1) of the Constitution provides that ‘[t]he President must either assent to and sign a Bill
passed in terms of this Chapter or, if the President has reservations about the constitutionality
of the Bill, refer it back to the National Assembly for reconsideration’.
26 S 91(2) of the Constitution provides that ‘[t]he President appoints the Deputy President and
Ministers, assigns their powers and functions, and may dismiss them’.
27 S v Dodo CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC)
(5 April 2001).
28 S 86(2) of the Constitution provides that ‘[t]he Chief Justice must preside over the election of
the President or designate another judge to do so. The procedure set out in Part A of Schedule 3
applies to the election of the President’.
29 S 84(2)(f) of the Constitution provides that ‘[t]he President is responsible for appointing
commissions of enquiry’. See also President of the Republic of South Africa and Others v
 South African Rugby Football Union and Others (SARFU III) (CCT16/98) [1999] ZACC 11;
2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
30 Act 8 of 1947.
31 S 1(1)(a) of the Commissions Act. See also SARFU III.
32 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
33 SARFU III para 141.
34 SARFU III para 142.
35 SARFU III para 143.
36 SARFU III para 147.
37 SARFU III para 148.
38 (887/2010) [2011] ZASCA 221; 2012 (2) SA 151 (SCA); [2012] 1 All SA 412 (SCA)
(30 November 2011).
39 Democratic Alliance v eThekwini Municipality para 21.
40 (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC)
(5 October 2012) paras 41–2. The quote from O’Regan J is from Brink v Kitshoff NO
(CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) para 35.
41 (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007).
42 Masetlha para 77.
43 Masetlha para 81.
44 Masetlha para 77.
45 (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5)
BCLR 391 (CC) (23 February 2010).
46 Albutt para 69.
47 Democratic Alliance v President of South Africa para 34.
48 Democratic Alliance v President of South Africa para 36.
49 Democratic Alliance v President of South Africa para 39.
50 Hoexter, C ‘The rule of law and the principle of legality in South African administrative law
today’ in Carnelley, M and Hoctor, S (eds) (2011) Law, Order and Liberty: Essays in Honour
of Tony Matthews 61.
51 Price, A (2013) The evolution of the rule of law South African Law Journal 130:649 at 654–5.
52 The powers and functions referred to in paras (aa) to (ii) are as follows:
(aa) the executive powers or functions of the National Executive, including the
powers or functions referred to in section 79(1) and (4), 84(2)(a), (b), (c), (d),
(f), (g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93,
97, 98, 99 and 100 of the Constitution;
(bb) the executive powers or functions of the Provincial Executive, including the
powers or functions referred to in section 121(1) and (2), 125(2)(d), (e) and (f),
126, 127(2), 132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature or a municipal
council;
(ee) the judicial functions of a judicial officer of a court referred to in section 166
of the Constitution or of a Special Tribunal established under section 2 of the
Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of
1996), and the judicial functions of a traditional leader under customary law
or any other law;
(ff) a decision to institute or continue a prosecution;
 (gg) a decision relating to any aspect regarding the nomination, selection, or
appointment of a judicial officer or any other person, by the Judicial Service
Commission in terms of any law;
(hh) any decision taken, or failure to take a decision, in terms of any provision of
the Promotion of Access to Information Act, 2000; or
(ii) any decision taken, or failure to take a decision, in terms of section 4(1).
53 The concept of a decision is defined in s 1 of the PAJA as follows:
‘decision’ means any decision of an administrative nature made, proposed to be
made made, or required to be made, as the case may be, under an empowering
provision, including a decision relating to:
(a) making, suspending, revoking or refusing to make an order, award or
determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other
instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative nature, and a
reference to a failure to take a decision must be construed accordingly.
54 S 1.
55 AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another
(CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July
2006) para 40.
56 S 239 of the Constitution states:
(2) ‘organ of state’ means –
(a) any department of state or administration in the national, provincial or
local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of
any legislation,
but does not include a court or a judicial officer.
57 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June
2001) para 22.
58 Langeberg Municipality para 27.
59 (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October
2009).
60 Joseph para 26. See also the SCA judgment in Grey’s Marine Hout Bay (Pty) Ltd and Others v
Minister of Public Works and Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA) para 23.
61 Joseph para 31.
62 Joseph para 42. See also Premier, Province of Mpumalanga and Another v Executive
Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal
(CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998)
para 41.
63 Joseph para 26.
64 Joseph para 26.
65 Act 32 of 2000.
66 Joseph paras 33–9.
67 Joseph para 42.
68 Joseph para 46.
69 Joseph para 30.
70 Joseph para 59.
71 Joseph para 60.
72 Hoexter, C (2007) Administrative Law 224.
73 Klaaren, J and Penflod, G ‘Just administrative action’ in Woolman, S and Bishop, M (eds)
(2013) Constitutional Law of South Africa 2nd ed rev service 5 63.77.
74 Klaaren and Penflod (2013) 63.77.
75 SARFU III para 40.
76 SARFU III para 40.
77 (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July
2006) para 127.
78 See Kohn and Corder (2013).
79 Hira and Another v Booysens and Another 1992 (4) SA 69 (A) 70E.
80 See Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA) as well as,
generally, Kohn and Corder (2013).
81 Pharmaceutical Manufacturers para 76.
82 1947 (2) SA 984 (A).
83 Hoexter (2007) 293.
84 See Kohn and Corder (2013) 8. See also Hoexter, C (2004) The principle of legality in South
African administrative law Macquarie Law Journal 3(4):165–86 at 172.
85 1988 (3) SA 132 (A) 152A–D.
86 Union Government (Minister of Mines and Industries) v Union Steel Corporation (South
Africa) Ltd 1928 AD 220 at 236; National Transport Commission and Another v Chetty’s
Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) 735; The Administrator, Transvaal and The
Firs Investments (Pty) Ltd v Johannesburg City Council 1971 (1) SA 56 (A) 79–80;
Johannesburg City Council v The Administrator, Transvaal and Mayofis 1971 (1) SA 87 (A)
96A–D. See, however, the minority judgment of Jansen JA in Theron en Andere v Ring van
Wellington van die NG Sendingkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A) 14–21.
87 Bato Star Fishing para 43.
88 (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March
2004).
89 Bato Star Fishing para 44.
90 Bato Star Fishing para 45.
91 For a discussion on procedural fairness that precedes the adoption of the PAJA, see the
Constitutional Court judgments in Bel Porto School Governing Body and Others v Premier of
the Western Cape Province and Another (CCT58/00) [2002] ZACC 2; 2002 (3) SA 265; 2002
(9) BCLR 891 (21 February 2002); Premier, Mpumalanga.
92 See Currie and De Waal (2013) 675.
93 De Smith, SA, Woolf, H and Jowell, JL (1995) Judicial Review of Administrative Action 431.
94 Lloyd v Mcmahon [1987] AC 625 at 702.
95 [1993] 3 All Er 92 (HL) at 106.
96 These comments have been quoted with approval by our courts in Du Preez and Another v
Truth and Reconciliation Commission 1997 (3) SA 204 (A) and Chairman: Board of Tariffs
 and Trade and Others v Brenco Incorporated (285/99) [2001] ZASCA 67 (25 May 2001).
97 (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998).
98 Premier, Mpumalanga para 39.
99 Premier, Mpumalanga para 41.
100 This conflict has been said to have been caused by a drafting error. See Currie and De Waal
(2013) 675.
101 Joseph para 42.
102 Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3 All ER
935 (HL).
103 (79/2001) [2003] ZASCA 11 (14 March 2003) para 20.
104 (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June
2008) para 14.
105 Walele para 37.
106 Walele para 38.
107 Hoexter (2007) 334.
108 Hoexter (2007) 337.
109 Currie and De Waal (2013) 677.
110 Premier, Mpumalanga para 41.
111 Joseph paras 62–3.
112 (1) (384/2000) [2002] ZASCA 44 (17 May 2002).
113 Currie and De Waal (2013) 680.
114 Currie and De Waal (2013) 681.
115 Currie and De Waal (2013) 681.
116 Baxter (1984) 228.
117 Baxter (1984) 228.
118 Baxter (1984) 228. See also Transnet Ltd. v Goodman Brothers (Pty) Ltd (373/98) [2000]
ZASCA 62; 2001 (1) SA 853 (SCA) (9 November 2000) para 5.
119 (373/98) [2000] ZASCA 62; 2001 (1) SA 853 (SCA) (9 November 2000).
120 Goodman Brothers para 9.
121 Goodman Brothers para 10.
122 Goodman Brothers para 5.
123 (594/09) [2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP) (2 June 2009).
124 Wessels para 10.
125 Wessels para 27.
126 (CCT 39/06) [2006] ZACC 23; 2007 (4) BCLR 339 (CC); (2007) 28 ILJ 537 (CC)
(12 December 2006).
127 Wessels 15.
128 Wessels 26.
129 De Smith, Woolf and Jowell (1995) 354.
130 (32/2003, 40/2003) [2003] ZASCA 46; [2003] 2 All SA 616 (SCA) (16 May 2003).
131 Ansett Transport Industries (Operations) Pty Ltd and Another v Wraith and Others (1983) 48
ALR 500 at 507 (lines 23–41).
132 Phambili Fisheries para 40.
133 De Ville, J (2005) Judicial Review of Administrative Action in South Africa 294.
134 S 1(d).
135 President of the Republic of South Africa and Others v M & G Media Ltd (CCT 03/11) [2011]
ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011) para 10.
136 Currie and De Waal (2013) 692.
137 Currie and De Waal (2013) 692.
138 M & G Media Ltd para 10.
139 (CCT 25/09) [2009] ZACC 21; 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC) (13 August
2009) paras 62–3.
140 Truth and Reconciliation Commission of South Africa (1998) Report: Volume 1 Chapter 8 The
Destruction of Records para 24; Volume 2 Chapter 2 The State Outside SA Between 1960 and
1990 paras 10–19.
141 Act 2 of 2000.
142 For an overview of the application of the PAIA, see Holness, D ‘The right of access to
information’ in Govindjee, A and Vrancken, P (2009) Introduction to Human Rights Law 192–
6.
143 New Clicks SA para 437; Walele para 29.
144 See s 9 of the PAIA.
145 Currie and De Waal (2013) 696.
146 Currie and De Waal (2013) 696.
147 Currie and De Waal (2013) 697.
148 M & G Media Ltd para 9.
149 S 1 of the PAIA defines a public body as:
(a) any department of state or administration in the national or provincial sphere of
government or any municipality in the local sphere of government; or
(b) any other functionary or institution when –
(i) exercising a power or performing a duty in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation.
150 S 11(1) of the PAIA.
151 S 1 of the PAIA defines a private body as:
(a) a natural person who carries or has carried on any trade, business or
profession, but only in such capacity;
(b) a partnership which carries or has carried on any trade, business or profession;
or
(c) any former or existing juristic person, but excludes a public body.
152 S 50 of the PAIA.
153 Unitas Hospital v Van Wyk and Another (231/05) [2006] ZASCA 34; 2006 (4) SA 436 (SCA);
[2006] 4 All SA 231 (SCA) (27 March 2006) para 17 where the SCA stated:
The threshold requirement of ‘assistance’ has thus been established. If the
requester cannot show that the information will be of assistance for the stated
purpose, access to that information will be denied. Self-evidently, however, mere
compliance with the threshold requirement of ‘assistance’ will not be enough.
154 Clutchco (Pty) Ltd v Davis (035/04) [2005] ZASCA 16; [2005] 2 All SA 225 (SCA); 2005 (3)
SA 486 (SCA) (24 March 2005) para 13.
155 Currie and De Waal (2013) 705.
156 South African Human Rights Commission (2010) Golden Key Awards Report on Access to
Information in South Africa (with the Open Democracy Advice Centre) available at
http://www.opendemocracy.org.za/wp-content/uploads/2010/10/2010-GKA-REPORT.pdf.
157 Golden Key Awards Report 9 South African Human Rights Commission (2010).
158 Clutchco para 11.
159 S 34 (public bodies) and s 63 (private bodies) of the PAIA. The sections contain exceptions
which provide mandatory protection of privacy of third parties and which would prevent a
body from granting access to the requested information.
160 S 35 of the PAIA.
161 S 36 (public bodies) and s 64 (private bodies) of the PAIA. These sections contain exceptions
which provide mandatory protection of commercial information of third parties and which
would prevent a body from granting access to the requested information.
162 S 37 (public body) and s 65 (private body) of the PAIA.
163 S 38 (public body) and s 66 (private body) of the PAIA.
164 S 40 (public body) and s 67 (private body) of the PAIA.
165 S 42 of the PAIA.
166 S 46 (public body) and s 70 (private body) of the PAIA.
167 (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November
2011).
168 M & G Media Ltd para 41.
169 M & G Media Ltd para 42.
170 M & G Media Ltd paras 44–7.
171 M & G Media Ltd para 124.
172 M & G Media Ltd para 125.
173 M & G Media Ltd para 128.
174 Currie and De Waal (2013) 711.
175 De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785; 1998 (7)
BCLR 779 (28 May 1998) paras 46–7.
176 (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999)
paras 16–17.
177 Currie and De Waal (2013) 712.
178 National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277
(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA)
(12 January 2009) para 18.
179 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012).
180 Ramakatsa para 6.
181 Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v
National Director of Public Prosecutions and Others (CCT 89/07, CCT 91/07) [2008] ZACC
13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) (31 July 2008)
paras 60–2; President of the Republic of South Africa and Others v South African Rugby
Football Union and Others - Judgment on recusal application (SARFU II) (CCT16/98) [1999]
ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) para 29.
182 Currie and De Waal (2013) 713.
183 (21990/2012) [2012] ZAWCHC 189; 2013 (4) SA 243 (WCC) (22 November 2012).
184 Mazibuko 256E–H.
185 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 11; Executive Council of the
Western Cape Legislature and Others v President of the Republic of South Africa and Others
(CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)
paras 15–17; Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
(CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)
para 10; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR
293; 1996 (2) SA 464 (9 February 1996) para 29; Dormehl v Minister of Justice and Others
 (CCT10/00) [2000] ZACC 4; 2000 (2) SA 825; 2000 (5) BCLR 471 (CC) (14 April 2000)
para 4.
186 Besserglik v Minister of Trade Industry and Tourism and Others (Minister of Justice
intervening) (CCT34/95) [1996] ZACC 8; 1996 (6) BCLR 745; 1996 (4) SA 331 (14 May
1996).
187 Van der Walt v Metcash Trading Limited (CCT37/01) [2002] ZACC 4; 2002 (4) SA 317; 2002
(5) BCLR 454 (11 April 2002) para 4.
188 (37904/2013) [2013] ZAGPPHC 292 (14 October 2013).
189 Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another
(CCT 19/07) [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC) (2 June 2008)
para 84.
190 Lesapo para 11; Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A)
511H–512A; Nino Bonino v De Lange 1906 TS 120 at 122.
191 Lesapho para 18.
192 Magidiwana paras 27–8.
193 Magidiwana paras 27–8.
194 Magidiwana para 37.
195 Le Roux, R ‘Employment’ in Du Bois, F (ed) (2007) Wille’s Principles of South African Law
9th ed 924–5.
196 Act 66 of 1995.
197 Act 75 of 1997.
198 Act 55 of 1998.
199 Grogan, J (2009) Workplace Law 10th ed 6.
200 (CCT14/02) [2002] ZACC 30; 2003 (2) BCLR 182; 2003 (3) SA 513 (CC); [2003] 2 BLLR
103 (CC) (13 December 2002) para 13.
201 NUMSA para 13.
202 Cheadle, H ‘Labour relations’ in Cheadle, MH, Davis, DM and Haysom, NRL (2013) South
African Constitutional Law: The Bill of Rights 2nd ed 18.4–18.10.
203 (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002).
204 NEHAWU para 39.
205 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
206 Act 44 of 1957.
207 South African National Defence Union paras 23–4.
208 South African National Defence Union paras 26–7.
209 South African National Defence Union paras 24 and 28.
210 See, for example, R v Genereux (1992) 88 DLR (4th) 110 (SCC) 156–7 where a minority of the
Canadian Supreme Court advanced this argument against the inclusion of members of armed
forces in the protection of labour rights.
211 South African National Defence Union v Minister of Defence para 29.
212 Cheadle (2013) 18.10.
213 Cheadle (2013) 18.10.
214 Cheadle (2013) 18.4–18.10. S 200A(1) of the LRA provides that
until the contrary is proved, a person who works for, or renders services to, any
other person is presumed, regardless of the form of the contract, to be an employee,
if any one or more of the following factors are present:
(a) the manner in which the person works is subject to the control or direction of
another person;
 (b) the person’s hours of work are subject to the control or direction of another
person;
(c) in the case of a person who works for an organisation, the person forms part of
that organisation;
(d) the person has worked for that other person for an average of at least 40 hours
per month over the last three months;
(e) the person is economically dependent on the other person for whom he or she
works or renders services;
(f) the person is provided with tools of trade or work equipment by the other
person; or
(g) the person only works for or renders services to one person.
Section 200A(2) goes on to provide that subsection (1) does not apply to any person who earns
in excess of the amount determined by the Minister in terms of section 6(3) of the BCEA.
215 2010 (4) SA 383 (LAC).
216 Kylie paras 16–22.
217 Kylie paras 25–7.
218 Kylie paras 32–7.
219 Kylie paras 40–6.
220 Kylie paras 52–3.
221 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
222 Jordan para 16.
223 South Africa Commission of Inquiry into Labour Legislation Wiehahn, NE (1980) Report of
the Commission of Inquiry into Labour Legislation Republic of South Africa, Department of
Manpower Utilisation.
224 Act 28 of 1956.
225 S 1 of the 1956 LRA.
226 S 1 of the 1956 LRA.
227 Van Niekerk, A (2012) Law@Work 2nd ed 39.
228 Van Niekerk, A (2012) Law@Work 2nd ed 39.
229 S 186(1) of the LRA provides that
[d]ismissal means that –
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee reasonably expected the employer to renew a fixed term contract of
employment on the same or similar terms but the employer offered to renew it
on less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she –
(i) took maternity leave in terms of any law, collective agreement or her
contract of employment;
(d) an employer who dismissed a number of employees for the same or similar
reasons has offered to re-employ one or more of them but has refused to re-
employ another; or
(e) an employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable for the
employee; or
(f) an employee terminated a contract of employment with or without notice
because the new employer, after a transfer in terms of section 197 or
section 197A, provided the employee with conditions or circumstances at work
 that are substantially less favourable to the employee than those provided by the
old employer.
230 S 188(1) of the LRA.
231 Items 8 and 9 of the Code of Good Practice: Dismissals.
232 Items 10 and 11 of the Code of Good Practice: Dismissals.
233 Items 10 and 11 of the Code of Good Practice: Dismissals.
234 GN 1517 in Government Gazette 20254 of 16 July 1999.
235 S 188(1)(b) of the LRA.
236 Du Toit, D et al (2006) Labour Relations Law: A Comprehensive Guide 5th ed 403–6.
237 NEHAWU para 35.
238 NEHAWU para 38.
239 NEHAWU para 40.
240 (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28
ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) (5 October 2007).
241 Sidumo para 74.
242 Sidumo paras 38 and 65.
243 South African National Defence Union para 32.
244 South African National Defence Union para 33.
245 South African National Defence Union para 35.
246 South African National Defence Union para 36.
247 South African National Defence Union para 36.
248 South African Government News Agency (2009, August) Address by Defence and Military
Veterans Minister, Lindiwe Sisulu, on the Illegal March by SANDF Members to the Union
Buildings available at http://www.sanews.gov.sa/south-africa/address-defence-and-military-
veterans-minister-lindiwe-sisulu-illegal-march-sandu.
249 S 213 of the LRA.
250 S 5 of the LRA provides that:
(1) No person may discriminate against an employee for exercising any right
conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no person
may do, or threaten to do, any of the following –
(a) require an employee or a person seeking employment –
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace forum; or
(iii) to give up membership of a trade union or workplace forum;
(b) prevent an employee or a person seeking employment from exercising any
right conferred by this Act or from participating in any proceedings in
terms of this Act; or
(c) prejudice an employee or a person seeking employment because of past,
present or anticipated –
(i) membership of a trade union or workplace forum;
(ii) participation in forming a trade union or federation of trade unions or
establishing a workplace forum;
(iii) participation in the lawful activities of a trade union, federation of
trade unions or workplace forum;
(iv) failure or refusal to do something that an employer may not lawfully
permit or require an employee to do;
 (v) disclosure of information that the employee is lawfully entitled or
required to give to another person;
(vi) xercise of any right conferred by this Act; or
(vii) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employee or a person
seeking employment in exchange for that person not exercising any right
conferred by this Act or not participating in any proceedings in terms of this
Act. However, nothing in this section precludes the parties to a dispute from
concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or limits any
provision of section 4, or this section, is invalid, unless the contractual provision
is permitted by this Act.
251 S 7 of the LRA provides that:
7. (1) No person may discriminate against an employer for exercising any right
conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no
person may do, or threaten to do, any of the following –
(a) require an employer –
(i) not to be a member of an employers’ organisation;
(ii) not to become a member of an employers’ organisation; or
(iii) to give up membership of an employers’ organisation;
(b) prevent an employer from exercising any right conferred by this Act or
from participating in any proceedings in terms of this Act; or
(c) prejudice an employer because of past, present or anticipated –
(i) membership of an employers’ organisation;
(ii) participation in forming an employers’ organisation or a
federation of employers’ organisations;
(iii) participation in the lawful activities of an employers’ organisation
or a federation of employers’ organisations;
(iv) disclosure of information that the employer is lawfully entitled or
required to give to another person;
(v) exercise of any right conferred by this Act; or
(vi) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employer in
exchange for that employer not exercising any right conferred by this Act or
not participating in any proceedings in terms of this Act. However, nothing
in this section precludes the parties to a dispute from concluding an
agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly contradicts or limits
any provision of section 6, or this section, is invalid, unless the contractual
provision is permitted by this Act.
252 S 26(1) of the LRA. S 26 contains a number of safeguards aimed at promoting its constitutional
validity.
253 S 25(1) of the LRA. Like s 26, s 25 also contains a number of safeguards aimed at promoting
its constitutional validity.
254 Du Toit (2006) 191.
255 Van Niekerk (2012) 349.
256 Currie and De Waal (2013) 486.
257 S 12 of the LRA.
258 S 13 of the LRA.
259 S 14 of the LRA.
260 S 15 of the LRA.
261 S 16 of the LRA.
262 NUMSA paras 34–5.
263 NUMSA para 13.
264 S 64(1)(d) of the LRA.
265 (CCT128/11) [2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR 1177 (CC); [2012] 12
BLLR 1193 (CC); (2012) 33 ILJ 2549 (CC) (21 September 2012).
266 SATAWU paras 10–11.
267 SATAWU para 54.
268 SATAWU para 53.
269 SATAWU para 86.
270 SATAWU para 92.
271 SATAWU para 17.
272 SATAWU para 27.
273 SATAWU para 34.
274 See De Vos, P (2012, 25 September) Sharp divisions on the Constitutional Court about the
right to strike Constitutionally Speaking available at
http://constitutionallyspeaking.co.za/sharp-divisions-on-the-constitutional-court-about-the-
right-to-strike/.
275 Grogan (2009) 343.
276 S 29 of the LRA.
277 Van Niekerk (2012) 370.
278 Ministerial Legal Task Team (1995, January) Explanatory Memorandum Industrial Law
Journal 16(2):278–336 at 292.
279 Ministerial Legal Task Team (1995) 292.
280 Van Niekerk (2012) 371.
281 S 28 of the LRA.
282 S 31 of the LRA.
283 S 32 of the LRA.
284 S 32 of the LRA.
285 Cheadle (2013) 18.23–18.24.
286 Cheadle (2013) 18.24–18.25.
287 (CCT23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6
September 1996) paras 64–6.
288 First Certification paras 64–6.
289 First Certification paras 64–6.
290 Cheadle (2013) 18.23.
291 Cheadle (2013) 18.26.
292 Cheadle (2013) 18.26.
293 2007 (1) SA 402 (SCA).
294 South African National Defence Union v Minister of Defence (II) (CCT65/06) [2007] ZACC
10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC); (2007) 28 ILJ 1909
(CC) (30 May 2007) para 48.
295 South African National Defence Union (II) para 55.
296 South African National Defence Union v Minister of Defence (I) CCT27/98) [1999] ZACC 7;
1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
297 South African National Defence Union v Minister of Defence and Others (SCA) para 5.
298 South African National Defence Union (SCA) para 6.
299 South African National Defence Union (SCA) paras 7–11.
300 South African National Defence Union (SCA) paras 14–19.
301 South African National Defence Union (SCA) para 25.
302 South African National Defence Union (II) para 51.
303 South African National Defence Union (II) para 52.
304 South African National Defence Union (II) para 56.
305 South African National Defence Union (II) para 55.
Socio-economic rights

16.1 Introduction
16.2 Socio-economic rights in the Constitution and related
constitutional provisions
16.3 Socio-economic rights and other areas of the law
16.4 The interpretation of socio-economic rights
16.4.1 Introduction
16.4.2 Duties: section 7(2)
16.4.2.1 The duty to respect, protect, promote and fulfil
16.4.2.1.1 Introduction
16.4.2.1.2 The duty to respect
16.4.2.1.3 The duty to protect
16.4.2.1.4 The duty to promote
16.4.2.1.5 The duty to fulfil
16.4.2.2 Negative and positive duties
16.4.3 The role of international and foreign law: section 39(1)
16.5 Socio-economic rights and the legislature and executive
16.5.1 Introduction
16.5.2 Translation through legislation
16.5.3 Translation through executive and administrative action
16.6 Socio-economic rights and the courts
16.6.1 Introduction
16.6.2 Modes of adjudication: sections 8 and 39(2)
16.6.3 Constraint in the adjudication of socio-economic rights
claims
16.6.3.1 Separation of powers concerns
16.6.3.2 The Constitutional Court’s approach to separation of
powers concerns
16.6.3.3 Factors influencing separation of powers concerns
16.6.3.3.1 Introduction
16.6.3.3.2 Where the legislature, executive or state
administration has defined the legal duties, courts are more
likely to intervene
16.6.3.3.3 Negative rather than positive duties
16.7 Different forms of judicial enforcement of socio-
economic rights
16.7.1 The duty to respect
16.7.1.1 Introduction
16.7.1.2 The duty to refrain from interfering with people’s
existing enjoyment of socio-economic rights
16.7.1.3 The duty to mitigate interferences with people’s
existing enjoyment of socio-economic rights when such
interferences are unavoidable
16.7.1.4 The duty to refrain from impairing people’s access to
socio-economic rights
16.7.2 The duty to protect
16.7.2.1 Introduction
16.7.2.2 Legislative and executive measures
16.7.2.3 Judicial measures
16.7.3 The duty to promote and fulfil
16.7.3.1 Introduction
16.7.3.2 Reasonableness review
16.7.3.2.1 Introduction
16.7.3.2.2 A means-end effectiveness test
 16.7.3.3 The elements of reasonableness review
16.7.3.3.1 Introduction
16.7.3.3.2 The state must have a plan
16.7.3.3.3 The plan must be reasonable
16.7.3.3.4 The state must continually review its plan
16.7.3.4 Meaningful engagement
16.7.3.5 Within available resources
16.8 Remedies in socio-economic rights cases
Summary

16.1 Introduction
As the Constitutional Court has pointed out, South Africa is a society in
which there are great disparities in wealth:
Millions of people are living in deplorable conditions and
in great poverty. There is a high level of unemployment,
inadequate social security, and many do not have access
to clean water or to adequate health services. These
conditions already existed when the Constitution was
adopted and a commitment to address them, and to
transform our society into one in which there will be
human dignity, freedom and equality, lies at the heart of
our new constitutional order. For as long as these
conditions continue to exist that aspiration will have a
hollow ring.1
The constitutional commitment to address these conditions is partly
reflected in various provisions of the Bill of Rights, including several
provisions that guarantee the social and economic rights of all. The
inclusion of so-called ‘socio-economic rights’ in the Bill of Rights is one of
the great innovations found in South Africa’s 1996 Constitution. Socio-
economic rights are rights to the conditions and resources necessary for the
material well-being of people. In other words, socio-economic rights are
rights to things such as food, water, housing, health care, social assistance,
education and a safe, clean and healthy environment. As we pointed out in
chapter 1, the inclusion of socio-economic rights in the Constitution
provides evidence of the fact that it is a transformative Constitution that
engages with the social and economic realities in South Africa.
In this chapter, we survey the legal nature and practical implications of
the socio-economic rights in South Africa’s Constitution. We describe the
rights in the abstract and then investigate the different ways in which they
operate as legal entitlements imposing concomitant legal duties on the state
and others.

PAUSE FOR REFLECTION

South Africa’s Constitution unique with regard to

socio-economic rights
It is not simply the fact that socio-economic rights have
been included in the South African Constitution that is
significant. Many constitutions across the world include at
least some of these rights although South Africa’s
Constitution boasts a longer list of socio-economic rights
than most others. Rather, it is the manner in which socio-
economic rights are protected in South Africa’s Constitution
that sets it apart from other comparable documents.
This is true in two ways. First, the socio-economic rights
in the South African Constitution are formulated so that
they do not only require the state to leave people alone in
their access to basic resources such as food, water,
housing, education and health care (in other words, the
Constitution does not only impose a negative obligation to
respect these rights). They also require the state to act – to
expend resources and to make and implement plans – to
ensure that people indeed have access to those resources
(in other words, the Constitution imposes positive
obligations on the state to realise these rights). In most
 other constitutions that include socio-economic rights this
is not the case. Generally, these rights are formulated in
such a way that they only protect access to resources such
as education or housing against unjustified state
interference.
Second, the socio-economic rights in South Africa’s
Constitution are justiciable. In other words, claims may be
brought to courts on their basis. Courts have the power
authoritatively to interpret these rights, to determine the
nature and extent of the duties they impose and to decide
whether or not these duties have been complied with.
Courts may also impose remedies to ensure that these
rights are vindicated. Again, in most other constitutions that
include socio-economic rights, this is not the case. Often,
for example, socio-economic rights are included in
constitutions as so-called directive principles only. This
means they are included as goals for the state to pursue
without having any legally binding nature.

16.2 Socio-economic rights in the

Constitution and related constitutional
provisions
Socio-economic rights are found in a variety of provisions of the
Constitution:
• Section 24 guarantees everyone’s right to a safe and healthy environment
and requires the state to protect the environment.
• Section 25(5) requires the state to enable citizens to gain equitable access
to land.
• Section 26 provides that everyone has the right to have access to
adequate housing and prohibits arbitrary evictions.
• Section 27 guarantees everyone’s right to have access to health care
services, sufficient food and water, and social security and assistance,
and prohibits the refusal of emergency medical treatment.
• Section 28(1)(c) entrenches children’s rights to shelter and to basic
nutrition, social services and health care services.
• Section 29 provides for everyone’s right to basic education and to further
education.
• Finally, section 35(2)(e) guarantees the right of detained persons to be
provided with adequate nutrition, accommodation, medical care and
reading material.
We can distinguish between three different groups of socio-economic rights.
First, some rights follow a standard formulation, stating that everyone
has the right of ‘access to’ these rights, but circumscribing the positive
duties they impose on the state. These rights are circumscribed, first, in that
they only provide the right of having ‘access’ to a particular social good.
Second, the positive duties they impose on the state are described as duties
to take reasonable steps, within available resources, to achieve their
progressive realisation. Standard examples are the section 26(1) right to
‘have access to adequate housing’ and the section 27(1) right to ‘have
access to’ health care services, including reproductive health care, sufficient
food and water, and social security and assistance. The positive duties
imposed by these rights are explicitly described in sections 26(2) and 27(2)
respectively, but in a manner that limits them, so that the state is required to
take only ‘reasonable legislative and other measures, within its available
resources, to achieve … [their] progressive realisation …’
Other qualified socio-economic rights are those in section 24(b) which
provides that ‘[e]veryone has the right to have the environment protected …
through reasonable legislative and other measures’; section 25(5) which
provides that ‘[t]he state must take reasonable legislative and other
measures, within its available resources, to foster conditions which
enable citizens to gain access to land on an equitable basis’; and
section 29(1)(b) which provides that ‘[e]veryone has the right to further
education, which the state, through reasonable measures, must make
progressively available and accessible’ (our emphasis).
A second group of rights are neither formulated as access rights nor
subjected to the qualifications of ‘reasonableness’, ‘available resources’ or
‘progressive realisation’. These are the section 29(1)(a) right of everyone to
‘basic education, including adult basic education’; the section 28(1)(c)
rights of children to ‘basic nutrition, shelter, basic health care services and
social services’; and the section 35(2)(e) rights of detained persons to ‘the
provision, at state expense, of adequate accommodation, nutrition, reading
material and medical treatment’.
Third, sections 26(3) and 27(3) describe particular elements of the
section 26(1) right to have access to adequate housing and the section 27(1)
(a) right to have access to health care services respectively. These
provisions can be viewed as specific, explicitly guaranteed manifestations
of the negative obligations imposed by one of the rights contained in that
section. In other words, these rights are formulated as prohibitions of
certain forms of conduct rather than as rights to particular goods and
services. Section 26(3) prohibits arbitrary evictions and section 27(3)
prohibits the refusal of emergency medical treatment. These two rights are
also not subjected to any of the special qualifications that are typically
attached to the qualified socio-economic rights.

16.3 Socio-economic rights and other

areas of the law
In addition to the socio-economic rights themselves, it is important to take
note of those rights that are not explicitly formulated as rights to material
conditions for human welfare, but that can be interpreted to create
entitlements to such goods and services. Obvious examples are the
section 11 right to life, the section 9 right to equality and the section 33
right to administrative justice. The right to life, for example, can be
interpreted as not only requiring the state to refrain from killing, but also
requiring it positively to protect and sustain life and to foster and maintain a
certain quality of life.2 Somewhat similarly, the right to equality can be
used to ground claims that a particular socio-economic benefit provided to a
specific class of needy people should be extended to others.3 In addition,
the section 9(3) and 9(4) prohibition on unfair discrimination is relevant to
poverty-related legal claims in the sense that socio-economic status could
be recognised as a ground for distinction analogous to the grounds
explicitly listed in section 9(3). This would render distinctions made on the
basis of socio-economic status actionable as unfair discrimination.4

PAUSE FOR REFLECTION

A claim to the right to medical treatment must be

based on section 27 of the Constitution
In Soobramoney v Minister of Health (Kwazulu-Natal),5 the
applicant was suffering from chronic renal failure. Although
renal dialysis would have prolonged his life, Addington
State Hospital refused to place him on its renal dialysis
programme. This was because the Hospital’s guidelines
provided that a person who was suffering from chronic
renal failure would only be placed on the dialysis
programme if he or she was eligible for a kidney transplant.
Its transplant policy provided, in turn, however, that a
person would only be eligible for a transplant if he or she
was ‘free from any significant vascular or cardiac
disease’.6 Unfortunately, Mr Soobramoney suffered from
ischaemic heart disease and was not eligible for a
transplant. This meant that he was also not eligible for
dialysis.
Mr Soobramoney then applied for an order setting aside
the Hospital’s decision. He based his application, inter alia,
on the grounds that the Hospital’s decision infringed his
right to life guaranteed in section 11 of the Constitution.
The Constitutional Court, however, rejected this argument
on the grounds that, unlike in other countries where the
right of access to health care services is not expressly
guaranteed in the constitution, the right to medical
treatment does not have to be inferred from the right to life.
This is because the right to medical treatment is expressly
guaranteed in section 27 of the Constitution. A person who
 wishes to claim the right to medical treatment, therefore,
must base his or her case on section 27 of the Constitution
and not on section 11.7

The administrative justice rights in section 33 of the Constitution are also

relevant. Most state decisions affecting access to health care, housing,
education, social services, food and water qualify as administrative action
and must comply with the standards of procedural fairness, lawfulness and
reasonableness. Administrative law grounds of review are potent tools for
the protection of socio-economic rights. Courts are comfortable with
applying these grounds of review and, particularly in the field of social
assistance, a large body of socio-economic rights case law based on
administrative law principles has developed.8

PAUSE FOR REFLECTION

Using non-rights related constitutional

provisions to protect and advance socio-
economic rights
Socio-economic rights are not only indirectly protected
through other constitutional rights. Litigants can use any
number of non-rights related constitutional provisions,
which seemingly have nothing whatsoever to do with socio-
economic rights, to protect and advance socio-economic
rights.
In Joseph and Others v City of Johannesburg and
Others,9 for example, the Constitutional Court held that
sections 152 and 153 of the Constitution, which set out the
objectives of local government, read together with
sections 4(2)(f) and 73 of the Local Government: Municipal
Systems Act 10 impose an obligation on every municipality
to provide basic municipal services to their inhabitants
 irrespective of whether they have a contractual relationship
with the municipality or not.11
Although, in contrast to water, electricity is not expressly
referred to in the Constitution, the Court held further, there
is no doubt that electricity is one of the most common and
important basic municipal services, especially in urban
areas. Municipalities are, therefore, required to provide
electricity to their inhabitants as a part of their constitutional
duty to provide basic municipal services.12

16.4 The interpretation of socio-economic

rights

16.4.1 Introduction
The interpretation of socio-economic rights is conditioned by two generally
applicable provisions of the Constitution: section 7(2) and section 39(1). It
is important to understand how these provisions influence the interpretation
of the social and economic rights.

16.4.2 Duties: section 7(2)

16.4.2.1 The duty to respect, protect, promote and fulfil

16.4.2.1.1 Introduction
Section 7(2) of the Constitution determines that ‘[t]he state must respect,
protect, promote and fulfil the rights in the Bill of Rights’. Section 7(2) is
central to the transformative ethos of the Constitution. It explicitly conveys
the idea that the state is not simply required to refrain from interfering with
the enjoyment of rights, but must also act so as to protect, enhance and
realise the enjoyment of rights.13 For practical purposes, this provision is
important as it indicates the scope and nature of the duties and entitlements
that socio-economic rights can create and so shows when and how they can
be used to advance legal claims. However, it is important to note that
section 7(2) does not only apply to the duties imposed by social and
economic rights; it also applies to all rights contained in the Bill of Rights.
Although we discuss section 7(2) in this part of the book because it applies
so directly and extensively to the duties imposed by social and economic
rights, we must never lose sight of its application to every other right
contained in the Bill of Rights.

16.4.2.1.2 The duty to respect

The duty to respect requires the state to refrain from interfering with the
enjoyment of rights. First, the state must not limit or take away people’s
existing access to housing, for instance, without good reason and without
following proper legal procedure. Second, where the limitation or
deprivation of existing access to housing is unavoidable, the state must take
steps to mitigate that interference. In the context of state eviction, for
example, the state must take steps to find alternative accommodation for the
evictees. Third, the state must not place undue obstacles in the way of
people gaining access to housing.14

16.4.2.1.3 The duty to protect

The duty to protect requires the state to protect against third party
interference the existing enjoyment of rights as well as the capacity of
people to enhance their enjoyment of rights or to gain access to the
enjoyment of rights. The state must, for instance, regulate private health
care provision to protect against exploitation by private institutions and
must, through such regulation, provide effective legal remedies where such
exploitation or other forms of interference occur. An aspect of this duty that
is often overlooked is the duty that it places on the courts, through their
powers of developing the common law and interpreting legislation, to
strengthen existing remedies or develop new remedies for protection against
private interference in the enjoyment of rights.15

16.4.2.1.4 The duty to promote

The duty to promote is difficult to distinguish from the broader duty to fulfil
rights.16 Liebenberg describes the duty to promote as a duty to raise
awareness of rights, that is, through educational programmes, to bring rights
and the methods of accessing and enforcing them to the attention of rights
holders and to promote the most effective use of existing access to rights.17
Budlender describes the duty to promote as a duty placed on administrative
bodies to use the promotion of socio-economic rights as a primary
consideration in their discretionary decision making, much like the
constitutional injunction contained in section 28(2) which requires that the
best interest of the child be the primary consideration in any decision
affecting a child.18 The duty to promote can also be understood as placing a
duty on the state to assist in creating the conditions in which individuals can
realise their rights. In other words, it places a duty on the state to use its
power to assist individuals in realising their rights.19

16.4.2.1.5 The duty to fulfil

The duty to fulfil requires the state to act and to ‘adopt appropriate
legislative, administrative, budgetary, judicial, promotional and other
measures’ 20 so that those people who do not currently enjoy access to
rights can gain access and so that the existing enjoyment of rights is
enhanced. What is required is for the state to take direct steps to fulfil the
enjoyment of rights for individuals. For example, the duty to fulfil may
require the state to build houses to help meet the needs of individuals
without access to housing.

16.4.2.2 Negative and positive duties

On the basis of section 7(2), a distinction is often made between positive
duties (duties to do something, to act) and negative duties (duties to refrain
from doing something, not to act). The duty to respect is then classified as a
negative duty, whereas the duties to protect, promote and fulfil are
described as positive duties.21 This distinction is presented in hierarchical
fashion. The negative duty to respect is often seen as more amenable to
enforcement through adjudication than the positive duties to protect,
promote and fulfil.22 The argument is that enforcement of a negative duty
does not require courts to interfere in allocational choices of the executive
or legislature as the enforcement of positive duties inevitably seems to do.
By the same token, it is argued that the enforcement of a negative duty does
not immerse courts in the field of policy formulation and evaluation to the
extent that the enforcement of positive duties supposedly does. However, in
reality, the distinction between positive and negative duties contains little
more than a simple semantic distinction between acting and not acting.
First, the same conduct of the state can often be described both as an
infringement of the positive duty to fulfil a right and as an infringement of
the negative duty to respect the right. As Liebenberg points out, in Minister
of Health and Others v Treatment Action Campaign and Others (No 2),23 it
was not clear whether the refusal to extend the provision of Nevirapine for
purposes of preventing mother-to-child transmission of HIV to all public
health facilities, apart from a few select pilot sites, constituted a negative
interference of the right to have access to health care services or a failure of
the state positively to provide an essential health service. In effect, it could
be characterised as both.24 Similarly, an element of the supposedly
negative duty to respect rights – the duty to mitigate interference in the
exercise of a right where such interference is unavoidable – clearly requires
the state to act rather than to refrain from acting.
Second, the distinction in consequence also does not hold up.
Enforcement of a negative duty against the state is as likely to have
consequences for expenditure of resources as enforcement of a positive
duty. Enforcement of a negative duty also potentially requires a court to
interfere as deeply in the policy-making powers of the executive or
legislature as does enforcement of a negative duty. Suppose the state seeks
to evict a group of illegal occupants from state land with the purpose of
developing that land for low-cost housing. The housing will be occupied by
a different group of people who are next in line on the housing waiting list.
For a court to prevent the state from doing so (to enforce the negative duty
to respect the right to have access to adequate housing) will have important
resource consequences. The state will have to find other suitable land and
buy it, or use other state land, which itself in turn might have been allocated
for a different use. Equally, in enforcing the negative duty in this respect, a
court would interfere very directly in a complex, multifaceted policy choice
about how to decide who gets access to housing first, about where to situate
low-cost housing development and so on.25
 Nevertheless, despite its porosity, the distinction between positive and
negative duties remains important for strategic reasons. As will become
clear below, courts are likely to subject negative interferences with socio-
economic rights to more robust scrutiny than failures to meet positive
duties. This is because the structure of the Constitution seems to demand it
and because courts regard themselves as bound by separation of powers
concerns to a lesser extent when dealing with negative interferences.

CRITICAL THINKING

Section 7(2) applies equally to all rights

Recall that section 7(2) applies equally to all rights, not
only social and economic rights. This means that
potentially all rights – including all so-called civil and
political rights – place both a negative as well as a positive
obligation on the state.
The Constitutional Court has recognised in several
judgments that section 7(2) places both a negative and a
positive obligation on a range of civil and political rights.
For example, in August and Another v Electoral
Commission and Others, the Court recognised the positive
duties imposed by the right to vote contained in section 19
of the Constitution, stating that:
The right to vote by its very nature imposes positive obligations
upon the legislature and the executive. A date for elections has to
be promulgated, the secrecy of the ballot secured and the
machinery established for managing the process. For this purpose
the Constitution provides for the establishment of the Commission
to manage elections and ensure that they are free and fair … [T]he
Electoral Commission Act … therefore provides that it is one of the
functions of the Commission to ‘… compile and maintain voters’
rolls by means of a system of registering of eligible voters by
utilising data available from government sources and information
furnished by voters.’ This clearly imposes an affirmative obligation
on the Commission to take reasonable steps to ensure that eligible
voters are registered.26
 We could similarly think of other civil and political rights
which clearly impose positive obligations on the state to
ensure their realisation. For example, the right to
assemble, demonstrate and picket guaranteed in
section 17 of the Constitution may require the police to
accompany a protest march to protect marchers from
attack, to ensure the keeping of the peace and to regulate
traffic flow. These examples show that it would be wrong to
associate negative duties with the realisation of civil and
political rights and positive duties with the realisation of
social and economic rights.

16.4.3 The role of international and foreign law:

section 39(1)
Section 39(1) of the Constitution provides that:
[w]hen interpreting the Bill of Rights, a court, tribunal
or forum:
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality
and freedom;
(b) must consider international law; and
(c) may consider foreign law.
Socio-economic rights are protected as justiciable rights in a large number
of national constitutions across the world.27 However, apart from a few
isolated exceptions,28 they have seldom directly formed the basis of
constitutional litigation in these jurisdictions and there remains an absence
of domestic case law in this respect. The largest bodies of case law have
developed in jurisdictions where socio-economic rights are indirectly
recognised through the extended interpretation of other rights or the
application of broader constitutional norms. For example, in India, courts
have used the so-called ‘directive principles of state policy’ to read basic
socio-economic entitlements into civil and political rights such as the right
to life.29 The German Constitutional Court has used the constitutional
‘social state’ principle to insulate state conduct intended to protect access to
basic socio-economic resources against challenges on the basis of, for
instance, freedom of competition.30 In other jurisdictions, the right to
equality and constitutional due process guarantees have been used to protect
or establish entitlements to basic socio-economic resources.31
In the absence of foreign jurisprudence on socio-economic rights, the
focus in South Africa has been on international human rights law. The work
of a variety of human rights treaty monitoring or enforcement bodies, in
particular, has been influential in shaping both the socio-economic rights
provisions of the Constitution 32 and the jurisprudence that has developed
around them since their enactment.33 The primary United Nations (UN)
human rights instrument in this respect is the International Covenant on
Economic, Social and Cultural Rights of 1996 (ICESCR), which South
Africa has signed and at the time of writing was poised to ratify. In various
respects, the socio-economic rights provisions of the Constitution are
modelled on the ICESCR and it is consequently particularly important as an
interpretative source.
The international body that supervises compliance with the ICESCR is
the Committee on Economic, Social and Cultural Rights (Committee on
ESCR). This Committee receives regular reports from state parties on the
realisation of socio-economic rights in the respective countries. In practice,
non-governmental organisations (NGOs) also submit ‘shadow’ reports
which the Committee on ESCR considers alongside those of the states when
the performance of the state in question is evaluated. The Committee on
ESCR also issues General Comments on the ICESCR which are highly
influential in the interpretation of socio-economic rights in general.34
Other international instruments with strong socio-economic rights
dimensions are the Universal Declaration of Human Rights (1948)
(Universal Declaration),35 the Convention on the Elimination of All Forms
of Discrimination against Women (1979) 36 and the Convention on the
Rights of the Child (1989).37 South Africa is a state party to the latter two
Conventions.
 The applicable regional instrument for South Africa is the African
Charter on Human and Peoples’ Rights (African Charter), to which South
Africa is a state party. The African Charter contains civil, political and
socio-economic rights which are enforced by the African Court on Human
Rights. The African Commission on Human and People’s Rights, the
predecessor of the African Court on Human Rights, decided few cases in
which socio-economic rights played a role.38
Other regional instruments that deal with economic and social rights are
the European Social Charter (1961) and the Additional Protocol to the
American Convention on Human Rights in the area of Economic, Social
and Cultural Rights (Protocol of San Salvador) (1988).
On a less formal level, bodies of experts have formulated guidelines that
inform the interpretation of socio-economic rights, such as the Limburg
Principles on the Implementation of the International Covenant on
Economic, Social and Cultural Rights of 1986,39 the Maastricht Guidelines
on Violations of Economic, Social and Cultural Rights of 1997 40 and the
Bangalore Declaration and Plan of Action of 1995.41
As is the case with section 7(2), remember that section 39(1) applies to
all the rights guaranteed in the Bill of Rights. South African courts must
therefore take into account international law and may take into account
foreign case law when they are called on to interpret the wide range of civil,
political, social and economic rights. We discuss section 39(1) here because
the scarcity of precedent-setting case law in the field of social and
economic rights across the world renders the application of international
law of particular importance in the interpretation of social and economic
rights.

PAUSE FOR REFLECTION

Socio-economic rights jurisprudence

impoverished by the scarcity of case law from
other domestic jurisdictions
Despite the valuable guidance that international law
provides for the interpretation of the socio-economic rights
in the Constitution, the continued absence of directly
relevant case law from other domestic jurisdictions
arguably impoverishes the development of social and
economic rights jurisprudence in South Africa. However,
the contribution of international human rights law to the
process of gaining recognition for these rights and initiating
the development of a viable jurisprudence around them
has nevertheless been significant.
The most important of the international socio-economic
rights documents, the ICESCR, only recently acquired an
individual complaints mechanism through which citizens
can lay individual complaints against states for violation of
the provisions of the ICESCR.42 No matters have as yet
been dealt with through this mechanism. As a result, the
available interpretations that the Committee on ESCR has
given to the provisions of ICESCR in its General
Comments have not been developed in the context of
concrete disputes or complaints, and often take the form of
general guidelines.43
In addition, up to now there has been no effective
method for the actual enforcement of the norms
developed by the Committee on ESCR in its General
Comments. This has meant that little attention has been
devoted in international law to the difficult issues of
separation of powers and institutional capacity that arise at
domestic level in the enforcement of court orders with
respect to socio-economic rights.44
Both these difficulties dilute the usefulness of
international norms as interpretative sources for socio-
economic rights at domestic level, particularly as the South
African socio-economic rights jurisprudence develops and
becomes more concrete and specific.
16.5 Socio-economic rights and the
legislature and executive

16.5.1 Introduction
As is the case with all constitutional rights, the translation of constitutional
socio-economic rights from ‘background moral claims’ 45 into enforceable
legal rights occurs through a variety of ‘law-making processes and
institutions’.46 Not only the courts, but at least also the legislature, the
executive and the administration, play important roles in this respect to
ensure the realisation of these rights.47 Underlying this discussion is the
assumption that social and economic rights – like all other rights – engender
specific obligations that the various branches of the state must fulfil.
Bilchitz has criticised the Constitutional Court for failing to engage
adequately with the need to establish the content of the various social and
economic rights and to clarify what the specific obligations are that the
various branches of the state need to fulfil. According to Bilchitz, there is a
need for the Court to determine what the exact services are to which an
individual is entitled when relying on social and economic rights. It is only
when these obligations are spelt out that it becomes possible to say with
certainty what the obligations are that these rights place on the state.48 The
role that each of these institutions plays in this process is set out below.

PAUSE FOR REFLECTION

The role of the South African Human Rights

Commission in the translation of socio-
economic rights into enforceable legal rights
Apart from the legislature, the executive and the
administration, the South African Human Rights
Commission (SAHRC), discussed in chapter 7, also has an
important role to play in translating socio-economic rights
from background moral claims into enforceable legal rights.
 In terms of section 184(3) of the Constitution, the SAHRC
has a special mandate to monitor the realisation of socio-
economic rights. The SAHRC has developed this mandate
into a reporting process in terms of which organs of state
report to it annually about the steps they have taken to
realise socio-economic rights. The SAHRC then drafts a
report evaluating the socio-economic rights performance of
the state which is tabled in Parliament. This could be
referred to as a mechanism for the ‘soft protection’ of
socio-economic rights, emphasising the programmatic
involvement of all sectors in government in the
implementation of socio-economic rights. The SAHRC is
also empowered to receive and deal with complaints of the
infringement of socio-economic rights in an extrajudicial
fashion.49

16.5.2 Translation through legislation

Socio-economic rights in South Africa are not only entrenched in the
Constitution. They are also extensively protected as statutory entitlements
in national legislation. The Constitution is replete with commands directed
at the legislature to enact legislation to give effect to specific constitutional
rights. Examples are found in section 9 in relation to the prohibition on
unfair discrimination; in section 32 in relation to the right of access to
information; and in section 33 in relation to the right to administrative
justice. Along similar lines, several of the socio-economic rights explicitly
require statutory measures to be enacted to give effect to them. So, for
instance, sections 26(2) and 27(2) require that the state take ‘reasonable
legislative … measures’, among other things, to realise the right to have
access to adequate housing and the rights to have access to health care
services, food, water and social security and assistance, respectively.50 The
legislature has reacted to these constitutional commands by enacting a wide
range of statutes aimed at facilitating, providing and protecting access to
basic resources.51
 The statutory measures envisaged here include legislation that creates
and empowers structures and institutions and sets in place processes for the
implementation of socio-economic rights.52 However, an important aspect
of such legislation is the creation of statutory socio-economic rights. These
statutory socio-economic rights can take the traditional form of subjective
legal entitlements of particular persons to particular things or services.
Examples are statutory entitlements to receive defined social assistance
benefits if an individual meets certain eligibility conditions that can be
enforced against the state 53 and entitlements to tenure on land exercised
through legal protection against eviction that can be enforced against other
private persons.54
Importantly, these statutory socio-economic rights also include rights or
entitlements of a less traditional nature. Given particularly the liberalised
law of standing that applies in Bill of Rights-related litigation in South
Africa pursuant to section 38 of the Constitution, it is possible for
individuals either on their own behalf, on behalf of a group or class of
persons, or in the public interest 55 to enforce broadly phrased statutory
duties or statutory commands against the state. A person doing so would not
so much be claiming something specific for him or herself (perhaps also
that), but the performance of a public statutory duty or commitment on
behalf of a larger collective.

PAUSE FOR REFLECTION

Enforcing statutory duties against the state on

behalf of individual complainants and the larger
collective
In Kutumela v Member of the Executive Committee for
Social Services, Culture, Arts and Sport in the North West
Province,56 the plaintiffs had applied for the Social Relief
of Distress Grant, but despite clearly being eligible, did not
receive it. Their complaint in response was not framed only
as an application for each individual complainant to receive
 the social assistance grant for which they were eligible and
to which they each had a subjective statutory right. Instead,
the complaint alleged that the state had statutorily
committed itself to provide to eligible persons a Social
Relief in Distress Grant in terms of the Social Assistance
Act and its regulations and had placed a duty on provincial
governments to make good that commitment. However, the
province in question had not dedicated the necessary
human, institutional and financial resources to do so and
the grant was therefore available only on paper.
The case was settled and resulted in a particularly wide-
ranging order requiring certain relief specific to the parties,
but also various forms of general relief. Apart from
requiring the provincial government in question to
acknowledge its legal responsibility to provide Social Relief
of Distress Grants effectively to those eligible for them, the
order required it to devise a programme to ensure the
effective implementation of Social Relief of Distress Grants
and to put in place the necessary infrastructure for the
administration and payment of the grant. In essence, the
state was ordered to make good on a statutory
commitment to give effect to an aspect of the right to have
access to social assistance. The result was that the grant
would in future be available to all eligible persons in
addition to it being paid out to the individual complainants.

The enforcement of socio-economic rights through these kinds of statutory

entitlements holds great promise. Statutory entitlements are first likely to be
much more detailed and concrete in nature than the vague and generally
phrased constitutional rights to which they purport to give effect. They
therefore provide a more direct mechanism through which individuals can
leverage access to resources. In addition, courts are likely to enforce these
statutory entitlements more robustly than they would constitutional rights
because they are enforcing a right, duty or commitment defined by the
legislature itself rather than a broadly phrased constitutional right to which
they have to give content. As such, when courts enforce statutory
entitlements, they are not confronted to the same extent with the concerns
of separation of powers, institutional legitimacy and technical competence
that have so directly shaped and limited their constitutional socio-economic
rights jurisprudence. The constitutional validity of such legislative
provisions can, of course, also be tested against the relevant social and
economic rights provision in cases where litigants believe the legislation is
under-inclusive and fails to provide sufficient or equitable access to the
guaranteed right.

PAUSE FOR REFLECTION

Statutory entitlements more detailed and

concrete in nature
The fact that statutory entitlements are likely to be much
more detailed and concrete in nature than the vague and
generally phrased constitutional rights forming their
background is clearly illustrated by the Regulations
Relating to Compulsory National Standards and Measures
to Conserve Water.57
These regulations have been issued in terms of
section 9 of the Water Services Act.58 They give effect to
the constitutional right of access to sufficient water
guaranteed in section 27(1)(b) of the Constitution by
providing that:
[t]he minimum standard for basic water supply services is a
minimum quantity of potable water of 25 litres per person per day
or six kilolitres per household per month –

(i) at a minimum flow rate of not less than 10 litres per minute;

(ii) within 200 metres of a household; and

(iii) with an effectiveness such that no consumer is without supply

for more than seven full days in any year.
 In Mazibuko and Others v City of Johannesburg and
Others,59 the Constitutional Court upheld the constitutional
validity of this regulation. In arriving at its decision, the
Constitutional Court pointed out that the Constitution
imposes a positive obligation on the state to adopt
legislative and other measures that give content to the
socio-economic rights guaranteed in the Constitution.60 In
addition, the Court also pointed out that the enforcement of
socio-economic rights through statutory entitlements is
consistent with the founding values of the Constitution.
This is because the standards adopted by the state inform
citizens of what government is seeking to achieve and thus
enable citizens to monitor government’s performance and
to hold it accountable politically if the standard is not
achieved or legally if the standard is not reasonable.61

In many jurisdictions other than South Africa where socio-economic rights

do not enjoy constitutional status, they are protected as statutory
entitlements in the ordinary positive law. Possibly the best examples can be
found in a number of the Scandinavian countries, in particular Finland,
where rights such as the right to social assistance, the right to housing, the
right to daycare for small children and rights of specified assistance for the
severely handicapped are protected as subjective rights in national
legislation.62 However, in the absence of constitutional socio-economic
guarantees, the existence of statutory socio-economic entitlements may be
precarious. In the United States, for example, the right to social welfare is
not guaranteed in the federal Constitution. The federal government has
consequently been free gradually to reduce social welfare entitlements as
public perceptions have changed about the sustainability of comprehensive
welfare provisions.63
In South Africa, statutory socio-economic rights are not subject to
legislative fiat to the same extent as in other jurisdictions where
constitutional socio-economic rights are absent. These rights in South
Africa are enacted by the legislature to give effect to constitutional socio-
economic rights.64 Legislative interference with a statutory socio-economic
right – such as a restrictive legislative redefinition of a social assistance
benefit – therefore constitutes an infringement of the constitutional socio-
economic right to which the statutory entitlement gives effect. Such
legislative interference will only be constitutionally permissible if it is
justifiable in terms of the appropriate standard of scrutiny. By the same
token, as we pointed out above, the statutory scheme that is intended to give
effect to a socio-economic right can be evaluated against that right to see
whether or not it gives full effect to that right.65
Apart from the corrective or protective background role played by
constitutional socio-economic rights in relation to statutory socio-economic
rights, constitutional socio-economic rights inform the interpretation of
statutory socio-economic rights. Also, the fact that a statutory right or
scheme is intended to give effect to a constitutional socio-economic right
can in specific cases in a rhetorical sense reinforce the enforcement of that
statutory right or scheme. In Residents of Bon Vista Mansions v Southern
Metropolitan Council,66 the South Gauteng High Court gave an interim
order that the plaintiff’s water supply be reconnected on the basis of
sections 4(1) and 4(3) of the Water Services Act. Although the decision was
based on statutory entitlements, the Court invoked the section 27(1)(b)
constitutional right to have access to sufficient water to reinforce its finding.
In other words, it interpreted the provisions of the Water Services Act
expansively and justified this by invoking the constitutional right that
guarantees everyone the right of access to water.
The Court proceeded from the assumption that a disconnection of a
household water supply was a prima facie infringement of the section 27(1)
(b) constitutional right which had to be justified in order to be
constitutionally sound.67 The Court then held that the provisions of the
Water Services Act constituted ‘a statutory framework within which such
breaches may be justified’.68 Further, throughout the judgment the Court
made reference to the fact that the Act was intended to give effect to the
constitutional right and that non-compliance with its provisions constituted
an infringement of the constitutional right.69
 Finally, constitutional socio-economic rights protect statutory socio-
economic rights from legal challenge on the basis of other constitutional
rights. The case of City of Cape Town v Rudolph and Others 70 dealt with a
constitutional challenge to provisions of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act (PIE) 71 brought on the basis
of section 25 property rights. It was argued that the PIE Act infringed the
property rights of individuals because it encouraged ‘land grabbing’, thus
limiting the property rights of the owners of property whose land is
occupied. The Court rejected this argument and pointed out that the
impugned provisions of the PIE Act were intended to give effect to
section 26(3) of the Constitution. The High Court relied on this fact to
reject the challenge.72

PAUSE FOR REFLECTION

Applying the principle of subsidiarity to socio-

economic rights
In recent cases a potential complication in the relationship
between constitutional socio-economic rights and
legislation enacted to give effect to them has arisen.
Drawing on case law dealing with the relationship between,
for example, the constitutional right to administrative justice
and the Promotion of Administrative Justice Act (PAJA),73
enacted to give effect to the constitutional right, our courts
have intimated that where legislation has been enacted to
give effect to a constitutional socio-economic right, litigants
may no longer rely directly on the constitutional right in
question to review conduct or law that breaches that
right.74 Instead, litigants must use the remedies provided
by the legislation in question. The only remaining role for
the constitutional right using this approach is as an aid for
the interpretation of the legislation in question and as the
basis for a possible constitutional challenge to the
 legislation giving effect to that right. In short, our courts
have started to apply the principle of subsidiarity to socio-
economic rights.75

16.5.3 Translation through executive and

administrative action
Apart from the legislature, the executive and state administration can also
interpret socio-economic rights and so self-define the duties that those
rights impose on them through the adoption of policies or through simple
executive or administrative decisions. Courts can then enforce these self-
defined duties against the executive or administration as the case may be.
The policy formulation or administrative decisions in some sense translate
constitutional rights into enforceable legal duties or entitlements.
In B and Others v Minister of Correctional Services and Others,76 for
example, four HIV-positive prisoners approached the High Court with an
application for an order that the state was constitutionally obliged to
provide them with antiretroviral treatment at its own expense. The case
turned on the interpretation of the term ‘adequate medical treatment’ in
section 35(2)(e) of the Constitution. The Court held that it did not have the
requisite medical expertise to determine what adequate medical treatment
for the various applicants entailed and whether or not it included
antiretroviral medication.
On this basis it held against two of the applicants.77 However, the Court
did find in favour of a number of the applicants to whom state medical
personnel had already prescribed anti-retroviral medication. The Court’s
reasoning with respect to these prisoners was that, in their case, the state
had itself through the prescription determined what ‘adequate medical
treatment’ was for them. In doing so, the state had translated the
constitutional right to be provided with adequate medical treatment into a
concrete legal entitlement that the Court was willing to enforce.78
The relationship between socio-economic rights defined through
executive or administrative action in this way, on the one hand, and
constitutional socio-economic rights, on the other, is similar to the
relationship between constitutional and statutory socio-economic rights
described above. In the first place, executive or administrative action that
defines duties and entitlements in terms of constitutional socio-economic
rights gives effect to those rights. As such, those rights can be protected
against challenge on other constitutional grounds.79 Second, such executive
or administrative definition of constitutional socio-economic rights has to
comply with the requirements of the right to which it is intended to give
effect.80

16.6 Socio-economic rights and the courts

16.6.1 Introduction
The socio-economic rights in the Constitution are justiciable – that is,
when they are infringed, they can be enforced through the courts.81 In fact,
it can be said that courts exercise the primary role in enforcing the statutory
socio-economic rights described above. In such cases they ‘mechanically’
enforce socio-economic rights as predefined by the legislature, often also
through particular remedies determined by the legislature. The law-making
role of the courts here, although certainly present, is much restricted.
However, courts also directly translate constitutional socio-economic
rights into enforceable legal claims through their interpretation and
application of these rights. In the process of adjudicating disputes on the
basis of constitutional socio-economic rights rather than on the basis of
statutory socio-economic rights, courts interpret these rights and give
concrete and authoritative expression to the duties they impose and to the
entitlements they create in much the same way that the legislature does
when giving effect to them through legislation. Courts also, through their
orders, enforce the duties and entitlements that they define.

16.6.2 Modes of adjudication: sections 8 and 39(2)

The power of courts to translate socio-economic rights into concrete legal
claims in this way is mediated through two provisions of the Constitution.
Sections 8 and 39(2) (the application sections) regulate the question of how
and under what circumstances fundamental rights, including socio-
economic rights, interact with existing law and with conduct. As such, these
sections indicate which kinds of legal claims can be launched through the
courts on the basis of constitutional socio-economic rights, against whom
and how the courts may deal with such claims.
Section 8(1) declares that the Bill of Rights ‘applies to all law’ 82 and
‘binds the legislature, the executive, the judiciary and all organs of state’.
Section 8(2) extends the reach of the Bill of Rights to the private sphere,
declaring that if the ‘nature of [a] right and the nature of any duty imposed
by [that] right’ allows, the right ‘binds a natural or a juristic person’.
Section 8(3) provides that when a court has found in terms of section 8(2)
that a right in the Bill of Rights is applicable in litigation between private
parties and that the right has been limited by one of the parties to the
litigation, it must give effect to that right by applying an existing statutory
or common law remedy. In the absence of such an existing remedy, the
court must develop the common law to create a remedy that will give effect
to the right.83 Finally, section 39(2) determines that when a court interprets
legislation or develops the common law, it ‘must promote the spirit, purport
and objects of the Bill of Rights’. This places a general interpretative
injunction on courts to infuse existing law with constitutional values.
Litigants can challenge the constitutionality of any law – that is, any
statutory rule, common law rule or customary law rule – whether it is the
state or a private party that relies on it.84 The consequence of a successful
constitutional challenge to a statutory rule is that the rule is overturned and
the situation reverts to the common law position that existed before the
particular rule was enacted. This should lead to the legislature enacting new
legislation to regulate the same issues, but the court can also itself remedy
the constitutional defect by reading words into the impugned provision. If a
rule of common law is successfully challenged, a court will employ its
inherent power to develop the common law to change that rule or to
develop new rules so as to make the common law position consistent with
the constitutional right in question.85
A statutory provision was challenged in this way as inconsistent with a
constitutional socio-economic right in the case of Khosa and Others v
Minister of Social Development and Others, Mahlaule and Another v
Minister of Social Development.86 This case dealt with provisions of the
Social Assistance Act and the Welfare Laws Amendment Act 87 that
restricted access to social assistance to South African citizens to the
detriment of permanent residents and their children. These provisions were
successfully challenged as inconsistent with the section 27(1) right of
everyone to have access to social security and assistance and the
section 9(3) prohibition on unfair discrimination.88
An example of where a common law rule was challenged as inconsistent
with a constitutional socio-economic right occurred in Brisley v Drotsky.89
In this case, the existing common law rules regulating private evictions
were unsuccessfully challenged as inconsistent with the section 26(3)
prohibition on arbitrary evictions. Had the challenge been successful, the
Court would have had to develop the common law so as to take adequate
account of the section 26(3) injunction that courts take account of ‘all
relevant factors’ before issuing an eviction order. The result would then
have been that courts would have a discretion, exercised on the basis of
their consideration of relevant circumstances, whether or not to grant the
order.90
Litigants can challenge state or private conduct as inconsistent with a
constitutional right. If state conduct is successfully challenged, it would
simply be invalid and the court would craft a constitutional remedy to
vindicate the right in question. If private conduct is successfully challenged,
a court would attempt to find a remedy in the existing statutory or common
law that can be adapted to vindicate the right in question. In the absence of
such existing remedy, the court would develop the common law so as to
provide such a remedy.
An example of a successful constitutional challenge to state conduct as
inconsistent with a constitutional socio-economic right is Treatment Action
Campaign (2) where a policy position of the National Department of Health
was successfully challenged as being inconsistent with the section 27(1)
right to have access to health care services. The result was that the policy
was invalidated and the Court ordered the government to adopt and
implement a policy that would be constitutionally sound. There has as yet
been no example of a challenge to private conduct as inconsistent with a
constitutional socio-economic right.
Finally, litigants can argue that a rule of law on which the other party to
the litigation relies is inconsistent, not with a particular right, but with the
general tenor of the Bill of Rights, the ‘objective value system’ that
underlies its particular provisions. A court that accepts such a proposition
would then interpret the statutory provision in question or develop the
common law rule so as to give effect to the ‘spirit, purport and objects’ of
the Bill of Rights.
An example of this kind of interaction between the Bill of Rights and the
existing law occurring in the context of socio-economic rights protection is
Afrox Healthcare Bpk v Strydom.91 The Supreme Court of Appeal (SCA)
was unsuccessfully asked to develop the common law of contract through
the rule that contractual terms that conflict with the public interest are
unenforceable. This would have rendered unenforceable disclaimers in
contracts between hospitals and their patients that indemnify the hospitals
from liability for damage negligently caused to patients.

16.6.3 Constraint in the adjudication of socio-economic

rights claims

16.6.3.1 Separation of powers concerns

Courts operate under the control of a set of unwritten constraints related to
their institutional legitimacy, their constitutional place and their technical
capacity, in particular when they adjudicate claims on the basis of
constitutional socio-economic rights in any of the three possible ways
described above. Courts are constrained in their law-making role with
respect to socio-economic rights by what can loosely be described as
separation of powers concerns. Both in the international arena and to a
lesser extent in South Africa, the status of socio-economic rights as legal
rights has long been questioned, mostly on the basis that these rights are not
justiciable.92
The arguments along this line all proceed from the same assumption.
Socio-economic rights supposedly uniquely create entitlements to
affirmative state action and consequently require the expenditure of
resources if they are to be realised. Courts, so it is argued, do not have the
institutional and technical capacity to deal with the polycentric questions of
social and economic policy that claims based on these affirmative rights
will inevitably raise. Nor do courts have the democratic legitimacy to
question the socio-economic policy choices of the elected political branches
of government that will be implicated. Courts are further hampered by the
fact that socio-economic rights supposedly do not pose justiciable legal
standards according to which these assessments can be made.
If courts engage in the adjudication of socio-economic rights claims, the
arguments proceed, this could both erode the legitimacy of the judiciary and
the idea of human rights as a whole. Because of economic realities, the state
may not be able to deliver the basic services that the courts require the state
to provide whatever courts have to say.93 This places courts in a potentially
damaging confrontation with the political branches of government.94
The most convincing response to these arguments does not deny that
socio-economic rights present problems to the process of adjudication, but
does deny that these problems mark them as essentially different from
other rights. According to this line of argument, already touched on above,
all rights impose both affirmative and negative duties on the state,
depending on the circumstances under which they are enforced. The
difficulties attending the judicial enforcement of the affirmative aspects of
socio-economic rights also occur in the judicial enforcement of these
aspects of other rights. The conclusion is that a rigid categorisation of rights
into those that are justiciable and those that are not is simply false. All
rights instead fall somewhere along a ‘justiciability spectrum’ where some
are more easily justiciable than others. The ‘possibility and role of judicial
enforcement … [should be] assessed and developed in relation to each
human right’ 95 instead of being denied a whole class or category of rights.
The simple fact that socio-economic rights were eventually included in
the Constitution in South Africa as justiciable rights shows that this latter,
more nuanced argument regarding their justiciability won the day in South
Africa. Nevertheless, an echo of the objection to their inclusion remains in
the way some of these rights included in the Bill of Rights, especially
sections 26 and 27, have been formulated. The careful limitation of the
scope and nature of the positive duties imposed by the qualified socio-
economic rights described above seems to be aimed at mediating some of
the difficulties with the judicial enforcement of socio-economic rights that
those opposed to their entrenchment have raised. In their interpretation of
socio-economic rights, our courts have been attuned to this echo.

16.6.3.2 The Constitutional Court’s approach to separation

of powers concerns
Although the Constitutional Court has from the start emphasised that socio-
economic rights are indeed justiciable,96 it has since been at great pains to
show that it regards itself importantly bound by the unwritten separation of
powers constraints outlined above.97 The Court has variously justified what
many have described as its restrained, respectful or deferential approach to
deciding socio-economic rights cases 98 with reference to its lack of
technical expertise in deciding the issues raised in socio-economic rights
cases; its lack of democratic accountability in contrast to the executive and
legislative branches in this respect; 99 and its institutionally determined
inability to access and process the essential information needed to decide
the policy, evaluative and allocation questions that arise in such cases.100
In addition, commentators have pointed out that, in a more strategic sense,
the Court’s concern for the maintenance of its own institutional integrity in
relation to the executive and legislature has had a constraining effect.101

PAUSE FOR REFLECTION

Separation of powers constraints on the

Constitutional Court when interpreting and
applying socio-economic rights
The fact that the Constitutional Court regards itself as
bound by separation of powers constraints when it
interprets and applies socio-economic rights is clearly
 illustrated in its judgment in the case of Grootboom where
Yacoob J stated that:
[t]he precise contours and content of the measures to be adopted
are primarily a matter for the Legislature and the Executive. They
must, however, ensure that the measures they adopt are
reasonable. In any challenge based on s 26 in which it is argued
that the State has failed to meet the positive obligations imposed
upon it by s 26(2), the question will be whether the legislative and
other measures taken by the State are reasonable. A court
considering reasonableness will not enquire whether other more
desirable or favourable measures could have been adopted, or
whether public money could have been better spent. The question
would be whether the measures that have been adopted are
reasonable. It is necessary to recognise that a wide range of
possible measures could be adopted by the State to meet its
obligations. Many of these would meet the requirement of
reasonableness. Once it is shown that the measures do so, this
requirement is met.102

In passages like these, we find echoes of the view,

discussed in particular in chapters 2 and 6 of this book,
that the Constitutional Court views its relationship with the
other branches of government within the framework of the
separation of powers doctrine as one in which a structured
dialogue takes place. This dialogue is one in which each of
the parties is designated a particular role to play and in
which the dialogue proceeds in a predestined manner –
almost like actors speaking the words written by a
playwright. In this view, the courts cannot overstep their
powers by treading on the terrain of the other branches of
government, much like an actor in a play should not tread
on the toes of other actors by speaking their lines.

The constraint exercised because of separation of powers concerns shows at

two different points in the process of adjudicating socio-economic rights
claims. First, it influences the willingness of the Constitutional Court to
entertain certain questions at all when it is asked to decide a case.103 It also
determines the extent to which and the manner in which the Court is willing
to interrogate those questions that it does feel comfortable dealing with or
cannot avoid.104 Second, it significantly constrains the Court in fashioning
orders to enforce its findings where it has held against the state in a socio-
economic rights case.105 Clearly, the extent to which the Court feels itself
bound by constraints in specific cases significantly determines the possible
outcome of those cases.

16.6.3.3 Factors influencing separation of powers concerns

16.6.3.3.1 Introduction
A number of factors related to the nature of specific cases and the manner
in which they are argued influences the extent to which courts feel
themselves bound by separation of powers constraints. It is important to
take cognisance of these factors when we want to predict to what extent a
court will exercise its powers to enforce social and economic rights in a
particular case. It is impossible to provide an encyclopaedic list of such
factors or to discuss all the factors in detail in this chapter. However, we
identify and discuss the important factors as an illustration of how
separation of powers concerns influence social and economic rights
adjudication by the judiciary.106

16.6.3.3.2 Where the legislature, executive or state administration has defined the
legal duties, courts are more likely to intervene
In certain social and economic rights cases, courts are not required to
interpret and enforce the rights contained in the Constitution itself.
Sometimes courts are merely required to enforce socio-economic rights
duties which the legislature, the executive or the state administration
has itself defined. In such cases, courts feel less constrained as the elected
branches of government have chosen to define the duties imposed by social
and economic rights themselves and, as it were, invited the courts to police
whether these duties are being fulfilled. Arguing a case on the basis of such
self-defined duties, rather than directly on the basis of a constitutional
socio-economic right, is therefore generally to be preferred.
 The most obvious examples of the enforcement of such self-defined
duties are cases where courts enforce statutory socio-economic rights in
either of the two senses described above.107 In most such cases, constraint
is diluted not only by the fact that courts are not faced with having to define
duties to impose on the state themselves, but also because courts are able to
use remedies from the existing law to enforce statutorily defined duties. The
many instances where courts have enforced statutory entitlements to social
assistance through administrative law remedies illustrate this point.108
Perhaps the most dramatic example of courts’ preference for the
enforcement of statutory entitlements is the line of cases culminating in
Ndlovu v Ngcobo; Bekker and Another v Jika.109 In terms of the common
law, a court must grant an eviction order if the applicant can show that he
or she is the owner and that the evictee is occupying the land.110
Section 26(3) of the Constitution, by contrast, determines that a court may
only grant an eviction order after considering all relevant circumstances.
Tenure security laws – most importantly the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act (PIE Act) 111 – require courts
in certain instances to consider all relevant circumstances before granting
an eviction order and as such to give effect to section 26(3).112
However, conflicting decisions in the High Courts raised uncertainty
over whether these laws, and particularly the PIE Act, apply also to
evictions in cases of holding over. These are cases where initially lawful
occupation subsequently became unlawful.113 In such cases, courts have
consequently been faced with the question whether, in lieu of the PIE Act,
section 26(3) changed the common law rules of eviction so as to confer
discretion on courts.
After a series of conflicting decisions in the High Courts in this
respect,114 the question reached the SCA in Brisley. The Court went to
somewhat tortuous lengths to avoid developing the common law in line
with section 26(3). It held that the section 26(3) ‘relevant circumstances’
could only be legally relevant circumstances. For the Court, the only
circumstances legally relevant to the question whether an eviction should be
allowed were the common law requirements of whether the evictor was the
owner of the land in question and whether the evictee was occupying the
land. As a result, the SCA held that section 26(3) did not change the rules of
the common law.115 The only influence that section 26(3) exerted on the
existing law was the influence exerted through the tenure security laws. The
common law was left intact with respect to those kinds of evictions to
which the tenure security laws did not apply.
Five months after Brisley, the SCA decided Ndlovu; Bekker. In this case,
the SCA was faced with the question whether or not the statutory
entitlements to security of tenure created by the legislature in the PIE Act
applied also to evictions in cases of holding over. The Court extended the
PIE Act’s application to such evictions.116 The result in practice was
exactly the same as the result would have been had the Court decided
Brisley differently. Courts would now also have a discretion in cases of
holding over, exercised on the basis of a consideration of all relevant
circumstances, whether or not to grant an eviction order.117 What the Court
was unwilling to do itself in Brisley on the basis of a constitutional right, it
was happy to do in Ndlovu; Bekker on the basis of the PIE Act’s statutory
entitlements.
By the same token, courts are more comfortable with enforcing socio-
economic rights where they have been defined through executive or
administrative action as described above. In B v Minister of Correctional
Services, the Court was willing to order the state to provide at its own cost
antiretroviral medication to the two applicants to whom the state had
prescribed it. By contrast, the Court refused to make the same order with
respect to the two applicants for whom the medication had not yet been
prescribed. This decision turned on the fact that the prescription of the
medication to the first two applicants amounted to an administrative self-
definition of the state’s duty. The Court was willing to enforce that duty
because, in doing so, it was not required itself to determine what adequate
medical treatment entailed, a task that it felt it did not have the requisite
expertise to undertake.118
The Treatment Action Campaign (2) judgment of the Constitutional
Court provides a similar example. This case concerned, however, policy
formulated by the Cabinet rather than a decision by the general state
administration. In the TAC case, the Court was asked to consider the right of
access to health care for HIV-positive pregnant mothers. The case involved
specifically the question whether they are entitled to a single dose of
antiretroviral drugs at the birth of their babies to reduce the transmission of
HIV from mother to child. The Court engaged in a relatively robust manner
with issues of HIV/AIDS policy and was more willing to impose a precise
and intrusive directory order on the state compared with other cases. This
can in significant part be explained by the fact that the Court was simply
requiring the state to extend to its logical conclusion a policy decision that it
had itself already taken. This policy decision was that Nevirapine was
suitable and safe to provide to mothers giving birth at select public health
facilities and their new-born children to prevent the transmission of HIV.
The Court required the state to extend the provision to all public health
facilities for the same purpose.119 Again, an element of self-definition of
duties, this time through an executive policy decision, influenced the
Court’s perception of constraint.

CRITICAL THINKING

Social mobilisation of citizens in addition to

litigation
It is sometimes argued that the reasons why the Treatment
Action Campaign (2) case was successfully litigated go
beyond the fact that the Court was required to extend a
policy decision already taken by the executive. Mark
Heywood, a member of the TAC at the time the case was
heard, argues that the TAC was so successful because it
used both social mobilisation and litigation – based on the
right of access to health care – to pursue clearly defined
goals. Heywood argues that in each case in which the TAC
invoked constitutional rights and threatened or pursued
litigation against private institutions (like drug companies)
or the state:
 the litigation was not left to lawyers, but used to strengthen and
empower a social movement and backed up by marches, media,
legal education, and social mobilization. Without an accompanying
social mobilization, the use of the courts may deliver little more
than pieces of paper, with a latent untapped potential. For example,
one of South Africa’s most ground-breaking socio-economic rights
judgments (Government of the RSA and Others v Grootboom and
Others, 2001) concerns the right to housing. It was delivered by the
Constitutional Court in 2001. But in 2008, when Irene Grootboom,
the first applicant, died she was still without a house … Some
writers … suggested that this combination of human rights
advocacy and litigation will reveal its limitations when it comes up
against defences based on arguments about resource constraints
and ‘available resources’. However, TAC argues that in a system of
governance in which rights are supposed to be pivotal to policy
making, decisions on resource allocations must be subject to what
Pius Langa, the South African Chief Justice, calls the ‘culture of
justification’ … This means that decisions on spending on crucial
socio-economic rights should not be determined only by what state
treasuries (in their own wisdom) decide is affordable.120

Heywood is in effect arguing that the broader social

mobilisation of citizens around social and economic rights
claims is important in pursuing social justice claims and
that an over-reliance on the courts to effect social change
may backfire or may not produce beneficial results for
those citizens most in need.

16.6.3.3.3 Negative rather than positive duties

As a general point of strategy and to avoid separation of powers constraints,
it is preferable to characterise infringements of any socio-economic right as
a negative rather than a positive infringement of the specific right. As a
rule, courts will scrutinise alleged infringements of negative duties imposed
by socio-economic rights more strictly than they would failures in meeting
positive duties. There is some evidence from the case law that this is a
matter of judicial attitude in the first place. Courts simply feel themselves
less constrained when adjudicating negative infringements as they perceive
the enforcement of negative duties as requiring less interference in the
sphere of power of the political branches than the enforcement of positive
duties.121 However, particularly with respect to the qualified socio-
economic rights, the difference in degree of judicial constraint at play in
cases of enforcement of positive as opposed to negative duties seems
simply to be required by the way in which these rights are formulated and
by the general structure of constitutional litigation.
As we pointed out in chapter 10, constitutional litigation in South Africa
proceeds in two stages. First, the complainant bears the onus of persuading
the court that a right in the Bill of Rights has been infringed. Should a court
find that the right has in fact been infringed, the state (or where a
constitutional duty has been infringed by a private party, the private party in
question) bears the onus of justifying and so rendering constitutionally
sound its limitation of that right. In principle, the standard of scrutiny in
terms of which courts decide whether or not any infringement of any
constitutional right, including any socio-economic right, is justified is
prescribed by section 36(1), the general limitation section, which applies to
all rights.
However, despite the fact that section 36(1) in principle applies to all
infringements of all constitutional rights, courts in practice do not apply
section 36(1) when they must decide whether or not failures by the state to
give effect to the positive duties to protect, promote and fulfil the qualified
socio-economic rights can be justified.122 Recall that the positive duties
imposed by qualified socio-economic rights in sections 26 and 27 of the
Constitution are explicitly described as duties to take reasonable legislative
and other measures, within available resources, to achieve the progressive
realisation of the rights in question.123 The Constitutional Court has
interpreted these qualifying phrases as an internal limitation clause: in
essence, a special standard of reasonableness scrutiny, used instead of
section 36(1), according to which the Court decides specifically whether or
not failures in meeting the positive duties imposed by qualified socio-
economic rights can be justified.
Whether or not the possible justification of an infringement of a socio-
economic right is considered in terms of section 36(1) or in terms of the
special limitation clause that applies to positive infringements of qualified
socio-economic rights significantly determines the degree of constraint
under which a court operates. This is so because the standard of scrutiny
that is applied under the two tests is different. Section 36(1) first poses a
threshold requirement that an infringement of a right must meet in order for
it to be capable of justification – the infringement must have occurred in
terms of law of general application to be at all justifiable.124 Second,
section 36(1) poses a standard of justification that the infringement must
satisfy once it has passed the threshold. The standard of justification or
scrutiny required by section 36(1) is relatively intrusive. It has been
described by our courts as a proportionality test. A court weighs the purpose
and benefits of the infringement against its nature, effect and severity. The
court then considers the relative efficacy of the infringing measure in
achieving its purpose in deciding whether or not it is justified. As such, it
allows courts a fair amount of leeway to interrogate state conduct and to
prescribe specific alternative options where state conduct is found to be
unjustifiable. By contrast, the reasonableness test that applies in cases of
infringements of the positive duties imposed by the qualified socio-
economic rights is applied as a shifting standard of scrutiny.
Usually, when the court enquires into whether the state has acted
reasonably to protect, promote and fulfil its duties in terms of sections 26
and 27, it will ask whether the means used by the state were effective in
achieving the purpose the state set out to achieve. This enquiry gives the
state considerable leeway as we pointed out above.125 Only in exceptional
cases does the court apply the reasonableness test in a more searching
manner and ask whether there was some proportionality between the
actions of the state and the aims it claims to want to achieve.126 This
means that the court would not explicitly consider the relative efficacy of
challenged state measures compared to other possible measures because,
once again, of separation of powers concerns.127 As a result, infringements
of the positive duties imposed by qualified socio-economic rights are
usually evaluated against a more lenient standard of scrutiny than the
standard that applies to other infringements of rights in terms of
section 36(1). In other words, courts are more constrained in their
assessment of such infringements than they are with respect to other
infringements.
 As pointed out above, it is often possible to characterise the same
infringement of a socio-economic right as an infringement of either the
negative or the positive duties imposed by the right. The special limitation
clause that applies to the positive duties of the qualified socio-economic
rights in lieu of section 36(1) of course does not also apply to the negative
duty to respect those same qualified socio-economic rights 128 or to any of
the negative or positive duties imposed by the basic socio-economic
rights.129 Infringements of these rights can still only be justified in terms of
section 36(1). As a strategic matter, therefore, it is better to characterise a
case brought on the basis of a qualified socio-economic right as a negative
infringement of that right where possible. This will involve the application
of section 36(1) during the justification phase of the litigation and, as such,
will significantly dilute the constraint under which the court operates. By
the same token, it is preferable, again where possible, to base a case on one
of the unqualified basic socio-economic rights, whether a negative or a
positive infringement is at play.
The question whether or not section 36(1) or the special reasonableness
limitations clause applies is in a strategic sense important for two further
practical reasons unrelated to judicial constraint. First, it has important
consequences for the onus of persuasion facing litigants in socio-economic
rights cases. As a rule, in Bill of Rights litigation, a party who alleges that a
right in the Bill has been infringed must persuade a court that this is indeed
so. A complainant has to make a prima facie case that the conduct of the
respondent has infringed a right in the Bill of Rights. Once such a prima
facie case has been made, the respondent bears the onus of persuading the
court that the infringement is justifiable.130 The potential benefit of this
structure is that it requires very little of a complainant in the way of
establishing questions of fact. The complainant usually simply has to
propose a certain interpretation of the right he or she alleges is being
infringed. The complainant then has to show that the respondent’s conduct
infringes the right so described, an exercise that mostly involves arguing
questions of law on an abstract level.
However, in the kinds of socio-economic rights cases referred to above,
where the allegation is that the state has failed to take reasonable steps
within available resources to achieve the progressive realisation of a
qualified socio-economic right, this structure is bedevilled. In such cases,
for the complainant to show that the right has in fact been infringed
involves making a prima facie case that the state’s existing measures are
unreasonable. The state then has the opportunity to rebut this prima facie
showing by arguing that its measures are in fact reasonable.131 The
difficulty is that for a complainant to make a prima facie showing that the
state’s measures are unreasonable requires the complainant to establish a
wide range of factual questions. These questions mostly relate to
information that is more or less uniquely in the knowledge of the
complainant’s opponent, the state.132 Often, of course, the typical socio-
economic rights complainant would not have the required access to
information and resources to do this. This may be another reason why
litigation spearheaded by social movements like the Treatment Action
Campaign has been successful. TAC’s resources allowed it to present an
overwhelming amount of persuasive evidence to the court.
Second, the special limitation clause that applies in cases of positive
infringements of qualified socio-economic rights potentially allows for the
justification of all positive infringements of qualified socio-economic
rights. This is because it does not also impose a threshold requirement of
law of general application as section 36(1) does. Certain infringements that
would simply not be capable of justification in terms of section 36(1) –
infringements that occur in terms of simple state conduct, for example,
unrelated to any law of general application 133 – can be justified in terms
of the reasonableness test that applies to the qualified rights.
Both these factors, although not related to constraint as such, additionally
indicate a preference for arguing a case as a negative infringement rather
than a positive one, or on the basis of a basic rather than a qualified socio-
economic right.

PAUSE FOR REFLECTION

Separation of powers concerns overstated

As we have argued throughout this book, separation of
powers concerns loom large whenever unelected judges
are empowered by the Constitution to declare invalid the
actions of members of the executive or of Parliament.
These members usually have more democratic legitimacy
because of the direct link between voter preferences and
the staffing of these institutions. It is sometimes argued that
this problem becomes more acute when the courts are
empowered – as they are under the Constitution – to
enforce social and economic rights. However, we contend
that these concerns are often overstated. As the
Constitutional Court pointed out in Treatment Action
Campaign (2):
The primary duty of courts is to the Constitution and the law,
“which they must apply impartially and without fear, favour or
prejudice”. The Constitution requires the state to “respect, protect,
promote, and fulfil the rights in the Bill of Rights”. Where state
policy is challenged as inconsistent with the Constitution, courts
have to consider whether in formulating and implementing such
policy the state has given effect to its constitutional obligations. If
it should hold in any given case that the state has failed to do so, it
is obliged by the Constitution to say so. In so far as that constitutes
an intrusion into the domain of the executive, that is an intrusion
mandated by the Constitution itself. There is also no merit in the
argument … that a distinction should be drawn between
declaratory and mandatory orders against government. Even
simple declaratory orders against government or organs of state
can affect their policy and may well have budgetary implications.
Government is constitutionally bound to give effect to such orders
whether or not they affect its policy and has to find the resources
to do so.134

Moreover, section 1(d) of the Constitution explicitly links

the democratic nature of the system of government to
open, accountable and responsive government.135 Where
courts enforce social and economic rights, they ensure a
more accountable and responsive government, thus
enhancing and not diminishing the democratic nature of the
state. A democratic state is responsive to the needs of
 those who live in that state and a court that enforces social
and economic rights helps the state to be as responsive as
financial and other resources available to the state allow
that state to be. Thus, it can be argued that the
enforcement of social and economic rights by the courts
assists the state to be more democratic not less so.

16.7 Different forms of judicial enforcement

of socio-economic rights
The preceding discussion creates the context within which a more detailed
description and analysis of the mechanics of the enforcement of socio-
economic rights by the courts can take place. We thus proceed to consider
each of the different ways in which courts may enforce socio-economic
rights in turn, using the constitutional command that these rights must be
respected, protected, promoted and fulfilled as a template. While doing so,
keep in mind that this taxonomy can be somewhat artificial and that the
duties imposed by a specific social or economic right can overlap and can
implicate more than one of the commands to ‘respect, protect, promote and
fufil’ the right.

16.7.1 The duty to respect

16.7.1.1 Introduction
The duty to respect socio-economic rights requires the state and others to:
• refrain from interfering with people’s existing enjoyment of socio-
economic rights
• mitigate interferences with people’s existing enjoyment of socio-
economic rights when such interferences are unavoidable
• refrain from impairing people’s access to socio-economic rights.
As pointed out above, the courts are likely to enforce the different elements
of this negative duty more robustly than the positive duties to protect,
promote and fulfil. The duty to respect, consequently, is a potentially potent
tool with which to ensure people’s adequate access to basic resources.

16.7.1.2 The duty to refrain from interfering with people’s

existing enjoyment of socio-economic rights
South Africa’s apartheid history provides particularly stark examples of the
violation of this element of the duty to respect socio-economic rights. The
most obvious of these relate to the right to have access to land and to
housing. In terms of the spatial segregationist policies of grand apartheid,
large numbers of people were dispossessed of and forcibly removed from
their land and their homes. People were also arbitrarily evicted from
informal settlements as a result of so-called ‘influx control’ policies.136
The statutory measures in terms of which these dispossessions and
removals occurred have now been repealed and new legal measures have
been put in place preventing a recurrence of such practices. Apart from the
fact that the dispossession of land by the state is now regulated by
section 25 of the Constitution,137 the eviction of people from land is
heavily regulated by a raft of new laws. Two examples are the Extension of
Security of Tenure Act (ESTA) 138 and the PIE Act.139 Both laws make
eviction from land in certain instances more difficult than it would
ordinarily be by, inter alia, requiring that a court consider whether an
eviction would be just and equitable in the light of all relevant
circumstances before granting an eviction order.140 Both the repeal of the
old laws and the new legal measures are examples of legislative translations
of the duty to respect the rights to have equitable access to land and to
housing, and particularly of the prohibition on arbitrary evictions, into
concrete legal entitlements.

PAUSE FOR REFLECTION

The notorious removals from District 6

One of the most notorious forced removals occurred in
District 6, a suburb close to the city centre of Cape Town.
 The South African History Archive describes the facts
around this removal and the destruction of District 6 by the
apartheid state:
On February 11, 1966, the apartheid government declared Cape
Town’s District Six a whites-only area under the Group Areas Act of
1950. From 1968, over 60 000 of its inhabitants were forcibly
removed to the Cape Flats, over twenty five kilometres away.
Except for the local houses of worship, the buildings were
systematically bulldozed throughout the 1970s, and by 1982 almost
all evidence of the district had been destroyed. Originally named
the Sixth Municipal District of Cape Town in 1867, the
neighbourhood was home to almost ten per cent of the city’s
population. Its unique culture was a composite of the dynamic and
diverse population of Malay, Eastern European, Indian and African
immigrants, ex-slaves, artists, musicians and activists. District Six
was famed for its proximity to the City Centre, as well as its view of
the picturesque Table Mountain and harbour. District Six had
experienced a long history of removals, with black residents
forcibly removed as early as 1901. This was intensified in the early
1960s, when residents were perfunctorily given notice and
informed of their new homes. By the mid 1960s the apartheid
government regarded the district as both physically and morally
tainted by miscegenation, wholly unfit for rehabilitation. Over the
next two decades, they systematically razed it to the ground.141

The same pattern was repeated in many other parts of

South Africa. The inclusion of a specific provision in the
Constitution to prevent the arbitrary eviction of people from
their homes is therefore not surprising.

Courts have been involved in the translation of this element of the duty to
respect socio-economic rights in different ways. In the first place, courts
have enforced legislative translations in this respect. A large body of case
law has already developed around the eviction provisions of statutes such as
the ESTA and the PIE Act. Second, courts have also directly enforced this
element of the duty to respect socio-economic rights by invalidating laws
that allowed the state to interfere in the existing enjoyment of socio-
economic rights or by preventing the state from interfering in the enjoyment
of such rights.
 In Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others, for
example, the Constitutional Court found that section 66(1)(a) of the
Magistrates’ Courts Act 142 unjustifiably breached the negative duty to
respect the right of everyone to have access to adequate housing.143 These
provisions allowed the sale in execution of a person’s home to make good a
judgment debt without adequate judicial oversight. The Court proceeded to
read words into the statute to make provision for appropriate judicial
oversight.144 More recently, the Court reconsidered the execution process
in the High Court along similar lines in Gundwana v Steko Development
CC and Others.145
Section 27(3), the right not to be refused emergency medical treatment,
can perhaps also be interpreted to give expression to the state’s duty to
respect socio-economic rights by refraining from interfering in the existing
enjoyment of these rights. In Soobramoney, the Constitutional Court held
this right only required the state not to refuse arbitrarily emergency medical
treatment where it exists. This is an inordinately restrictive reading which,
as Alston and Scott point out, renders the right virtually redundant.146 A
matter which at this stage remains unclear is the question whether or not
section 27(3) of the Constitution could also be used to prohibit the state
from disestablishing an emergency medical service at a public health
institution to save costs.147

16.7.1.3 The duty to mitigate interferences with people’s

existing enjoyment of socio-economic rights when such
interferences are unavoidable
The duty to respect socio-economic rights does not entail an absolute
prohibition on the state preventing it from interfering in the existing
exercise of such rights. There are many instances in which it is simply
unavoidable for the state to interfere, often to advance the public interest in
some respect or to protect the rights of others. In such cases, the duty to
respect requires that an effort be made to mitigate the effect of the
interference in the enjoyment of the right in question by providing some
form of alternative access to it. This element of the duty to respect socio-
economic rights is potentially quite burdensome and often requires the
expenditure of significant resources and significant adjustments in policy.
Nevertheless, our courts have shown themselves to be willing to enforce
this duty in a robust fashion. The security of tenure laws referred to above
again provide a good example of how this constitutional duty has been
translated into a statutory entitlement of sorts. These laws, in some
instances, require courts to consider to what extent suitable alternative land
is available for evictees before granting an eviction order and an eviction
order can be denied if such an alternative is absent.148
In Port Elizabeth Municipality v Various Occupiers,149 for example, the
state had applied for an order to evict illegal occupants from privately
owned land in terms of section 6 of the PIE Act. Section 6 allows a court to
grant such an order, but only if it is just and equitable to do so taking into
account various factors including ‘the availability to the unlawful occupier
of suitable alternative accommodation or land’.150 The Constitutional
Court confirmed the SCA’s decision denying the eviction order.151 The
Court held that section 26(3) of the Constitution, mediated through
section 6 of the PIE Act, required that when the state seeks to evict, it must
provide suitable alternative accommodation to the evictees. This duty
would not be operative in all cases of state-sponsored eviction.152 A court
would have to decide whether or not to enforce this duty on the basis of a
consideration of each case’s ‘own dynamics, its own intractable elements
that have to be lived with (at least for the time being), and its own creative
possibilities that have to be explored as far as reasonably possible’.153
To decide whether or not the duty applied, the Constitutional Court
looked in general terms at the position and the conduct of the occupiers, at
the conduct of the municipality in its management of the matter and at the
conduct of the landowners in question. The Court took the following factors
into consideration:
• the fact that the occupiers in this case had lived on the land in question
for a long period of time 154
• that they would be severely affected by any eviction 155
• that they had occupied the land, not in order to force the municipality to
provide to them, in preference to others, alternative land when they were
eventually evicted, but because they had been evicted from elsewhere
and had nowhere to go 156
• that there was ‘no evidence that either the municipality or the owners of
the land need to evict the occupiers in order to put the land to some other
productive use’ 157
• that the municipality had made no serious effort to reach an amicable
conclusion to the matter, but had rushed to apply for an eviction order
and had acted unilaterally.158
These factors drove the Court to the conclusion that an eviction order could
not be granted unless suitable alternative land or accommodation was
provided. Although the municipality had offered to allow the occupiers to
move to two possible alternative sites, the Constitutional Court went so far
as to find that neither of those sites was suitable, most importantly because
the municipality could not guarantee to the evictees security of tenure if
they were moved there.159 As a result, the occupiers were allowed to
remain on the land in question.160
The robust manner in which the Constitutional Court dealt with this
element of the duty to respect socio-economic rights in Port Elizabeth
Municipality could in part be explained by the fact that the Court was
enforcing a statutory duty in terms of the PIE Act. However, there are also
indications in the case law that the courts are willing to enforce this
burdensome element of the duty to respect socio-economic rights against
the state even where a statutory duty to this effect does not apply.
For example, in Modderfontein Squatters, Greater Benoni City Council v
Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici
curiae); President of the Republic of South Africa and Others v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae),161
the SCA was confronted with a claim brought by a private landowner. The
landowner argued that the state was constitutionally obliged effectively to
protect his constitutional right to property by enforcing and carrying out an
eviction order that he had obtained in terms of section 4 of the PIE Act
against a large group of people unlawfully occupying his land. The Court
held that the state was indeed obliged to protect the claimant’s right to
property against invasion by unlawful occupiers.162 However, at the same
time, the state was obliged to protect the right of the unlawful occupiers to
have access to adequate housing.163 On the facts of the particular case, the
Court held that this meant that the state, were it to execute the eviction
order against the unlawful occupiers, would have to act ‘humanely’. This
meant, inter alia, that the state could not evict the unlawful occupiers unless
it ‘provide[d] some [alternative] land’.164 This conclusion led the Court to
order the state to pay damages to Modderklip to make good the breach of its
right to property and its failure to protect against that breach.165 The Court
also ordered that the unlawful occupiers be allowed to remain on
Modderklip’s land until alternative land was made available to them by the
state.166
In effect, the order required the state to lease the land so that the
unlawful occupiers could remain there without continuing to infringe
Modderklip Boerdery’s property rights.167 The Court made this intrusive
order without considering in any meaningful way the substantial resource
consequences that its decision would have for the state and the extent to
which its order prescribes a particular policy option to the state in
preference to others. This robust approach, as was the case in Port
Elizabeth Municipality, was justified by the Court with reference to the
conduct of the state, the landowner and the unlawful occupiers during the
course of the dispute.
The Court pointed out that the state still had no measures in place to deal
with the plight of people such as the Modderfontein occupiers despite the
Court holding in Grootboom that it must introduce measures to take account
of the needs of those in housing crisis.168 The Court also highlighted the
fact that the state had, despite various opportunities to do so, failed to
attempt to solve the dispute between the unlawful occupiers, the landowner
and itself. The state had failed diligently to pursue a settlement and had
reneged on agreements reached.169 This was despite the fact that the state
itself had caused the predicament of the unlawful occupiers and the
landowner by previously evicting the unlawful occupiers from state land
without providing alternative accommodation.170 As such, the state had
made its own bed and now had to lie in it. The conduct of both the unlawful
occupiers and the landowner had, in contrast to the state’s, been exemplary.
The landowner had at all times acted within the law and had throughout
sought to effect an amicable solution that would vindicate both his and the
occupiers’ rights.171 The unlawful occupiers had occupied the land without
intending to force the hand of the state to provide them with land in
preference to others and had also sought to reach an amicable solution both
with the landowner and the state.172
The duty to provide alternative accommodation on eviction has since
been applied in a number of further eviction decisions of the Constitutional
Court. Significantly, in City of Johannesburg Metropolitan Municipality v
Blue Moonlight Properties 39 (Pty) Ltd and Another,173 the duty to
provide alternative accommodation was in a limited fashion extended to
apply also to private property owners when they seek to evict and not only
the state. The case dealt with a group of impoverished people who occupied
a disused factory building in downtown Johannesburg. A property
developer bought the building in order to develop it. At the time he bought
the building he was aware of the presence of the occupiers. When the
owner’s application for an eviction order eventually landed before the
Constitutional Court on appeal, the Court held that the owner could only
evict the occupiers once the City had made available alternative
accommodation to them. Given that this would take some time, it meant
that the owner had to bear some measure of the burden of providing
alternative accommodation in allowing the occupiers to remain until
alternative accommodation had been found. The Court summarised the
position as follows:
To the extent that it is the owner of the property and the
occupation is unlawful, Blue Moonlight is entitled to an
eviction order. All relevant circumstances must be taken
into account though to determine whether, under which
conditions and by which date, eviction would be just and
 equitable. The availability of alternative housing for the
Occupiers is one of the circumstances.174

CRITICAL THINKING

Unintended consequences of Blue Moonlight

The effect of Blue Moonlight outlined above should not be
overstated. Moreover, it must be noted that the
development of the duty to provide alternative
accommodation as it was applied in Blue Moonlight could
have unintended and, it must be said, potentially perverse,
consequences in particular with respect to private property
owners. Following Blue Moonlight, any private person
interested in developing land or buildings occupied
unlawfully by impoverished people can buy the land or
buildings for development in the secure knowledge that the
state would have to foot the bill for the relocation of the
occupiers. In effect, the state is required to subsidise
private property development under such circumstances.
It is also unclear to what extent this decision may have a
transformative impact on the law in general. It does not
seem to challenge the institution of private property as
protected by common law property regulation. This, it can
be argued, is because the judgment does not take
sufficient notice of its remarks in Port Elizabeth Municipality
where the Court argued that the Constitution required us:
… to move away from a static, typically private-law conceptualist
view of the constitution as a guarantee of the status quo to a
dynamic, typically public-law view of the constitution as an
instrument for social change and transformation under the
auspices [and I would add ‘and control’] of entrenched
constitutional values.175
16.7.1.4 The duty to refrain from impairing people’s access
to socio-economic rights
The duty to respect socio-economic rights may also be violated if the state
places obstacles in the way of people gaining access to basic resources or in
the way of people enhancing their existing access to such resources. The
most obvious way in which the state can fail in this duty is if it arbitrarily
refuses to provide access to a basic resource that it has the capacity to
provide. In Soobramoney, for example, the Constitutional Court held that
section 27(3) of the Constitution imposes a duty on the state not to refuse
access arbitrarily to emergency medical treatment where it exists.176
Although they were dealt with as cases of infringements of the positive
duty to fulfil the right of access to health care services and to social
assistance respectively, the judgments in Treatment Action Campaign (No
2) and Khosa are also examples of the state breaching its duty to respect
those rights by refusing to provide access to a resource it had the capacity to
give. In Treatment Action Campaign (No 2), the policy decision not to make
Nevirapine available generally at public health facilities to prevent mother-
to-child transmission of HIV at birth was, in fact, a refusal by the state to
provide essential health care to pregnant, HIV-positive women and not only
a failure by the state to extend health care provision to those women.
Equally, in Khosa, the provisions of the Social Assistance Act that excluded
permanent residents and their children from access to social assistance
benefits were, in fact, a refusal by the state to provide these benefits to
them.177
Perhaps a less obvious way in which this element of the duty to respect
can be breached by the state is where the state impairs access to a basic
resource through its administrative inefficiency. In Mashava v The
President of the Republic of South Africa and Others,178 for example, the
Constitutional Court confirmed an order of the High Court that a
presidential proclamation 179 assigning the administration of the Social
Assistance Act to provincial governments was invalid. Although the
validity of the proclamation was challenged on the grounds that the
President was not competent to make the assignment,180 the case was
motivated by the fact that the assignment resulted in the right of access to
social assistance of persons eligible for social assistance grants being
impaired.
The plaintiff was an indigent disabled person who had applied for and
been awarded a disability grant. However, for a period of more than a year
after his successful application, he did not receive the grant from the
Limpopo Department of Health and Welfare.181 It was clear that the failure
to pay to the plaintiff was caused by the administrative incapacity of the
provincial Department of Health and Welfare. Also, the administration of
the social welfare system in the province was woefully under-resourced,
due to ‘demands for the reallocation of social assistance monies to other
[provincial] purposes’.182 The plaintiff contended that the Social
Assistance Act (and the payment of his disability grant) could be
administered more efficiently and on a more equitable basis by the national
government than by the provinces.
As a result, the assignment of the administration of the Social Assistance
Act to the provinces constituted a negative impairment of the right to have
access to social assistance. In effect, therefore, the decision of the
Constitutional Court invalidating the assignment is a decision that the state
must give effect to the duty to respect the right to have access to social
assistance by removing an impediment to its effective exercise.

16.7.2 The duty to protect

16.7.2.1 Introduction
The duty to protect socio-economic rights requires the state to protect the
existing enjoyment of these rights, and the capacity of people to enhance
their enjoyment of these rights or newly to gain access to the enjoyment of
these rights, against third-party interference.

16.7.2.2 Legislative and executive measures

The state most obviously carries out the duty to protect socio-economic
rights by regulating, through legislation or executive/administrative
conduct, those instances in which private entities control access to basic
resources such as housing, health care services, food, water and education.
Such regulation could in the first place be aimed at opening up access to
these resources. The Rental Housing Act 183 is an example. The purpose of
this law is primarily to create mechanisms to open access to the rental
housing market, including creating Rental Housing Tribunals to engage in
dispute resolution in the rental housing market.
The state can also protect access to socio-economic rights through
standard setting in respect of safety and quality in the provision of services
and products. The Foodstuffs, Cosmetics and Disinfectants Act (FCDA)
184 is an example here. The purpose of this Act is to regulate fungicide and
pesticide residue and additive and preservative levels in food by setting
minimum and maximum standards and by creating mechanisms for the
monitoring of these levels in foodstuffs.
Finally, the state can exercise its duty to protect socio-economic rights by
regulating those instances in which private parties can interfere in the
existing enjoyment of socio-economic rights. The tenure security laws
discussed above in the context of the duty to respect socio-economic rights
185 provide an example. These laws also protect informal rights to land and
housing against private interference in the same way as they protect these
rights against the state. They make eviction more difficult than it would
otherwise be through imposing additional procedural and substantive
safeguards that have to be met before an eviction order can be granted by a
court.

16.7.2.3 Judicial measures

Courts can, in a number of important ways, also act so as to protect socio-
economic rights. In the first place, courts can protect socio-economic rights
by adjudicating constitutional and other challenges to state measures that
are intended to advance those rights.186 In Minister of Public Works and
Others v Kyalami Ridge Environmental Association and Others
(Mukhwevho Intervening),187 for example, a state decision to house
destitute flood victims temporarily on the state-owned grounds of a prison
outside Johannesburg was challenged by surrounding property owners as a
violation of their administrative justice rights. The challenge was in part
based on the argument that the decision was unlawful as the Minister of
Public Works had no statutory authority to take such a decision. The Court
rejected this argument primarily because it held that the Minister had the
requisite power to take the decision by virtue of the state’s common law
rights as property owner.188 Also, the decision was taken in furtherance of
a constitutional duty to provide shelter to those in dire straits.189 Through
its decision, the Court effectively protected the right to have access to
adequate housing of the flood victims against private interference.
Courts can also protect socio-economic rights when they interpret
legislation and develop the common law. As pointed out above, courts are
obliged to interpret legislation and develop the common law in such a way
that the ‘spirit, purport and objects’ of the Bill of Rights are promoted.190
In other words, courts are required to infuse legislation and the common
law with the value system underlying the Constitution – to read the rights in
the Bill of Rights and the values underlying them into the existing law. The
power to engage constitutionally with the existing law, particularly with
respect to the common law is an extremely important, but much neglected,
way in which socio-economic rights can be advanced. In an economy based
on private ownership, the common law background rules governing
obligations and property determine access to and distribution of basic
resources.191 The development of constitutional socio-economic rights so
as to establish new and unique constitutionally based remedies certainly is
an important endeavour on its own. However, to explore the full
transformative potential of socio-economic rights, sustained critical
engagement with these common law background rules is crucial.
Some of these common law background rules have of, course, been
significantly adapted through legislation – the impact of the different
security of tenure laws on private property rights is a case in point.192
However, courts retain an important responsibility to extend the protection
afforded socio-economic rights in the ordinary law through their powers of
interpretation of legislation and development of the common law.
Courts have readily engaged with legislation in attempts to broaden the
protection of socio-economic rights. In Jaftha, for example, the
Constitutional Court considered provisions of the Magistrates’ Courts Act
193 that authorised under certain circumstances, without proper judicial
oversight, the sale in execution of the home of a debtor to satisfy a
judgment debt. On the basis of the section 26(1) right of everyone to have
access to adequate housing, the Court adapted the Act through a
combination of interpretation and of reading in so that a judgment debtor’s
home can only be sold in execution if a court has specifically ordered so
after considering all relevant circumstances.194 Jaftha was argued and
decided on the basis of the negative duty to respect the right to have access
to adequate housing.195 However, in effect, the Court’s order amounts to
an instance of interpretative law making through which the Court
introduces into the Magistrates’ Courts Act a measure of protection for the
right to housing – the Court gave effect to its duty to protect that right.
Unfortunately, the courts have been far less active in engaging with the
common law so as to enhance the protection of socio-economic rights than
they have been with respect to legislation.196 In those few cases where the
courts have been asked to develop the common law so as better to give
effect to socio-economic rights, they have declined. In Afrox Healthcare,
for example, the SCA was invited to develop the common law of contract
so that disclaimers in hospital admission contracts indemnifying the
hospitals against damages claims on the basis of the negligence of their staff
would be seen as in conflict with the public interest and consequently
unenforceable. The argument was that such disclaimers had the effect that
patients were not adequately protected against unprofessional conduct at
such hospitals and that they as such constituted an impairment of access to
health care services.197 This argument was rejected and the common law
position remained intact.198
One example of where courts were willing to develop the common law
so as to protect socio-economic rights is the case of Permanent Secretary
Department of Welfare, Eastern Cape Provincial Government and Another
v Ngxuza and Others.199 Ngxuza dealt with a class action claim brought in
terms of section 38 of the Constitution by a number of social assistance
grantees for the reinstatement of disability grants that had unlawfully been
terminated by the Eastern Cape Province. The respondents in the case had
been granted leave to proceed with such a class action claim by the court a
quo. The province appealed against this granting of leave to the SCA. The
SCA, in the absence of any legislative form having been given to
section 38’s provision for class actions, proceeded to develop the common
law of standing to make provision for such claims. Although the decision
certainly opens the door for class action claims, at least where any
constitutional right is at play, it is centrally important for the protection of
socio-economic rights in particular. As Cameron JA (as he then was) states
at the outset of the judgment, for the Court: ‘The law is a scarce resource in
South Africa. This case shows that justice is even harder to come by. It
concerns the way in which the poorest in our country are to be permitted
access to both.’ 200

16.7.3 The duty to promote and fulfil

16.7.3.1 Introduction
The duty to fulfil socio-economic rights requires the state to ‘adopt
appropriate legislative, administrative, budgetary, judicial, promotional and
other measures’ 201 so that access to basic resources is extended and
enhanced. In sum, the state must act affirmatively to realise the rights. The
state breaches the duty to fulfil not when it invades the existing exercise of
socio-economic rights, but when it does not do enough or does not do the
appropriate things fully to realise those rights. For courts to enforce the duty
to fulfil requires them directly to evaluate state policy and practice and to
decide whether or not those policies and practices are adequate measures to
realise the socio-economic rights in question.
Courts are constrained in this evaluation by concerns about technical
capacity and institutional legitimacy as well as by a perceived absence of
justiciable standards against which to assess state performance. To deal with
these difficulties, the Constitutional Court has used a traditional model of
judicial review, but has given it new content. As with any breach of any
other right, when it is alleged that the duty to fulfil a socio-economic right
has been breached and where prima facie such a breach is established, the
Court considers whether or not it can be justified. However, the Court has
developed a special test or standard against which to evaluate the
justifiability of state measures to fulfil socio-economic rights that allows it,
in different ways, to mediate its concerns with capacity and legitimacy.
Which standard of scrutiny applies to breaches of the duty to fulfil socio-
economic rights depends on which socio-economic rights are at issue. If the
duty to fulfil a basic socio-economic right is breached, for example
children’s rights, rights of detainees or the right to basic education, the
section 36(1) proportionality standard applies. If the duty to fulfil a
qualified socio-economic right is breached, that breach can be justified
only in terms of a special standard of scrutiny – the Court’s reasonableness
standard – developed on the basis of the internal limitation clause attached
to these rights.
In determining whether the constitutional duties have been met, the
context is all important. The duties on the state may differ depending on the
litigants and the broader context within which they find themselves. As the
Constitutional Court pointed out in the Grootboom judgment with reference
to the right of access to adequate housing, ‘housing entails more than bricks
and mortar. It requires available land, appropriate services such as the
provision of water and the removal of sewage and the financing of all of
these, including the building of the house itself’.202 Moreover, it is not
only the state which is responsible for the provision of these rights. Other
agents in our society, including individuals themselves, must be enabled by
legislative and other measures to provide housing. The state must create the
conditions for access to the relevant right for people at all economic levels
of our society. State policy dealing with housing must therefore take
account of different economic levels in our society. There is a difference
between the position of those who can afford to pay for housing, even if it is
only basic although adequate housing, and those who cannot. For those who
can afford to pay for adequate housing, the state’s primary obligation lies in
unlocking the system, providing access to housing stock and a legislative
framework to facilitate self-built houses through planning laws and access
to finance.203

PAUSE FOR REFLECTION

 Applying the reasonableness standard of review
to positive duties
The reasonableness standard of review also seems to
apply when a positive duty to fulfil arises in terms of
section 27(3) of the Constitution, in other words where it is
argued that emergency medical services have to be
established at an institution where they do not exist. This
is because in Soobramoney, the Constitutional Court
intimated that should a positive duty be read into
section 27(3), it would be subject to the section 27(2)
internal limitation.204

16.7.3.2 Reasonableness review

16.7.3.2.1 Introduction
At the heart of the Constitutional Court’s approach to the implementation of
the duties imposed by social and economic rights – especially those set out
in sections 26 and 27 – is the requirement that the state must act reasonably
in order to meet its constitutional obligations. Although reasonableness
could arguably also be applied when dealing with the duty to protect
discussed above, it finds its most direct application in cases of the duty to
promote and fulfil and we will therefore discuss it under this subheading. It
is important to understand the factors that the courts take into account to
determine whether the state has indeed acted reasonably. Before we discuss
these factors, we first set out the judicial framework within which such a
determination will be made. The Constitutional Court has described its
reasonableness standard of scrutiny in five cases.
In Soobramoney, the Court refused to grant an order instructing
Addington State Hospital to provide dialysis treatment to the applicant. The
grounds for this decision were that the guidelines according to which the
hospital decided whether to provide the treatment were not unreasonable
205 and were applied rationally and in good faith to the applicant.206 This
meant, the Court held, that the Hospital’s decision did not breach the
section 27(1) right of everyone to have access to health care services.207
In Grootboom, the respondent applied for an order declaring the state’s
housing programme to be unconstitutional on the ground that it infringed
section 26(1) which guarantees everyone the right of access to adequate
housing. The Constitutional Court granted the order. In arriving at its
decision, the Court held that the state’s housing policy was unreasonable
and thus infringed section 26(1) because it did not include people who were
homeless and who found themselves in a crisis situation.208
In Treatment Action Campaign (No 2), the respondent applied for an
order declaring the state’s mother-to-child transmission (MTCT) of HIV at
birth prevention programme to be unconstitutional on the ground that it
infringed section 27(1) which guarantees everyone the right of access to
health services. The Constitutional Court granted the order. In arriving at
this decision, the Court held that the state’s MTCT of HIV at birth
programme was unreasonable and thus infringed section 27(1) because it
was not implemented at all public health facilities, but only at a limited
number of pilot sites.209
In Khosa, the applicant applied for an order declaring sections of the
Social Assistance Act, which excluded permanent residents from access to
social assistance grants, to be unconstitutional on the grounds that they
infringed section 27(1)(c) which guarantees the right of everyone to have
access to social security. The Constitutional Court granted the order. In
arriving at this decision, the Court held that the relevant sections were
unreasonable and thus infringed section 27(1)(c) because, first,
section 27(1)(c) refers to ‘everyone’ and not just to ‘citizens’; second,
permanent residents have made South Africa their home; and, third,
extending social security grants to permanent residents would not impose
an undue financial burden on the state.
In Mazibuko, the applicant applied for an order declaring the City of
Johannesburg’s free water policy which provided each household with 6
kilolitres of free water per month to be unconstitutional on the ground that it
infringed section 27(1)(b) which guarantees everyone the right of access to
sufficient water. The Constitutional Court refused to grant the order. In
arriving at this decision, the Court held that the City’s policy was
reasonable because, first, the majority of households in Johannesburg
consisted of four occupants or less; second, 6 kilolitres of free water per
household per month was more than adequate for such households; and,
third, larger households could apply to the City for an additional 4 kilolitres
per month.
Although the Constitutional Court has not been explicit about this, it is
clear from these cases that the reasonableness standard is a shifting standard
of scrutiny. In Soobramoney, the Court applied a basic rationality and good
faith test.210 In Grootboom and Treatment Action Campaign (No 2), the
Court applied a more stringent means-end effectiveness test. In Khosa, the
Court applied a yet stricter proportionality test. In Mazibuko, however, the
Court retreated from the proportionality test it had adopted in Khosa and
followed a much more deferential and process based approach.
Unfortunately, the Constitutional Court has not been explicit about which
factors determine the strictness of its scrutiny,211 but the cases indicate that
the following factors play a role:
• the position of the claimants in society 212
• the degree of deprivation they complain of and the extent to which the
breach of the right in question affects their dignity 213
• the extent to which the breach in question involves undetermined,
complex policy questions 214
• whether or not the breach also amounts to a breach of other rights 215
• the administrative and practical difficulties the provision of the goods
and services in question give rise to 216
• the extent to which the state has continuously reviewed and refined its
policies and programmes to ensure that it meets the needs of the poor
217
• the seriousness with which the state has approached its obligation and
the extent to which it accepts that it is obliged to take reasonable steps to
fulfil the right in question.218

16.7.3.2.2 A means-end effectiveness test

The Constitutional Court derives its reasonableness standard from the
state’s duty to take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of socio-
economic rights. In describing this duty, the Court has described the
standards against which to evaluate the state’s measures. The Court has
presented its reasonableness test as a means-end effectiveness test. In
Grootboom, the Court indicated that the state’s measures are evaluated to
determine whether they are ‘capable of facilitating the realisation of the
right’.219 The Court has been at pains in all its judgments so far to
emphasise that it does not test relative effectiveness, that it ‘will not enquire
whether other more desirable or favourable measures could have been
adopted, or whether public money could have been better spent’, but will
leave the ‘precise contours and content of the measures to be adopted [to
render a programme reasonable] … [to] the legislature and the
executive’.220
The Constitutional Court quite obviously adopts this distinction between
testing effectiveness and testing relative effectiveness to mediate its concern
with its institutional capacity and legitimacy and to manage its relationship
with the executive and the legislature. However, the distinction is in many
cases a fiction. This fiction is useful as it allows the Court to enforce rights
without it having to admit to prescribing directly to the state. As such, it
helps the Court avoid direct confrontation with the political branches.221
In Grootboom, the Court was clearly able to maintain the fiction. The
policy issue in question – how best to provide for the needs of the
‘absolutely homeless’ – allowed for a wide variety of different possible
solutions. The Court could thus simply declare that the housing programme
was inconsistent with the Constitution to the extent that it made no
provision for the ‘absolutely homeless’ and leave the choice of a specific
solution to the state.
By contrast, in Treatment Action Campaign (No 2), and particularly in
Khosa, the specificity of the policy issue that the Court evaluated was such
that it did not allow this scope. The Constitutional Court found in Treatment
Action Campaign (No 2) that the state’s restriction of the provision of
Nevirapine to the designated pilot sites breached section 27(1). This finding
ineluctably led to the state having to provide Nevirapine elsewhere despite
its unwillingness to do so.222 By the same token, in Khosa, the Court’s
finding of unreasonableness left no option but that permanent residents
should be included in the social assistance scheme. Indeed, the Court itself
read words to this effect into the Social Assistance Act.223
The Court’s desire to avoid direct confrontation with the political
branches is clearly illustrated in Mazibuko where the Court downplayed the
effect of its decisions in Grootboom and Treatment Action Campaign (No 2)
and emphasised the fact that it respects the policy-making functions of the
other two branches of government.
The orders made in these two cases illustrate the Court’s
institutional respect for the policy-making functions of
the two other arms of government. The Court did not
seek to draft policy or to determine its content. Instead,
having found that the policy adopted by the government
did not meet the required constitutional standard of
reasonableness, the Court, in Grootboom, required
government to revise its policy to provide for those most
in need and, in Treatment Action Campaign (No 2), to
remove anomalous restrictions.
The Constitution envisages that legislative and other
measures will be the primary instrument for the
achievement of social and economic rights. Thus it places
a positive obligation upon the State to respond to the
basic social and economic needs of the people by
adopting reasonable legislative and other measures. By
adopting such measures, the rights set out in the
Constitution acquire content, and that content is subject
to the constitutional standard of reasonableness.224

16.7.3.3 The elements of reasonableness review

16.7.3.3.1 Introduction
The Constitutional Court’s reasonableness standard requires first that the
state indeed act to give effect to socio-economic rights, and then requires
that what the state does meets a standard of reasonableness. In addition, the
state is also required to review continuously its plans and policies.

PAUSE FOR REFLECTION

The elements of the reasonableness standard

The different elements that make up the Constitutional
Court’s reasonableness standard were summarised by
O’Regan J in her judgment in Mazibuko. In her judgment,
O’Regan J stated that:
the positive obligations imposed upon government by the social
and economic rights in our Constitution will be enforced by courts
in at least the following ways. If government takes no steps to
realise the rights, the courts will require government to take steps.
If government’s adopted measures are unreasonable, the courts
will similarly require that they be reviewed so as to meet the
constitutional standard of reasonableness. From Grootboom, it is
clear that a measure will be unreasonable if it makes no provision
for those most desperately in need. If government adopts a policy
with unreasonable limitations or exclusions, as in Treatment Action
Campaign No 2, the Court may order that those are removed.
Finally, the obligation of progressive realisation imposes a duty on
government continually to review its policies to ensure that the
achievement of the right is progressively realised.225

16.7.3.3.2 The state must have a plan

The Court’s standard requires first that the state must devise and implement
measures to realise socio-economic rights – it cannot do nothing.226
Although these measures need to realise the rights only progressively – the
need for full realisation is deferred 227 – the state must have measures in
place to realise these rights and must implement them. In addition, the state
must show progress in implementing these measures and must be able to
explain lack of progress or retrogression. In particular, any deliberate
retrogression would be a prima facie breach that would require convincing
justification.228

16.7.3.3.3 The plan must be reasonable

Those measures that the state does adopt must be reasonably capable of
achieving the realisation of the right in question.229 To be judged as
reasonable in this sense, the state’s measures must meet at least the
following basic standards:
The measures must be comprehensive and co-ordinated.230 This
means that the state’s programme with respect to a right must not only
address ‘critical issues and measures in regard to all aspects’ of the
realisation of that right,231 but must also be coherent so that
responsibilities are clearly allocated to different spheres and institutions
within government.
In Grootboom, for example, the Constitutional Court held that even
though the state had adopted a programme to provide access to housing, it
had done nothing with respect to a critical aspect of the right to housing – it
had no measures in place with which to provide shelter to people with no
roof over their heads. As such, its housing programme was not
comprehensive.232
To ensure that state measures are comprehensive and co-ordinated, the
Committee on ESCR has suggested that states must adopt national
strategies or plans of action,233 which may or may not be presented in
national framework laws, through which to give effect to particular socio-
economic rights.234 The Constitutional Court’s references in Grootboom to
the need for a ‘national framework’ with respect to housing provision,
embodied in ‘framework legislation’ 235 and to the need for a ‘coherent
public housing programme’ 236 seem to endorse this suggestion by the
Committee.237
Financial and human resources to implement measures must be
made available. In Grootboom, the Court stated that for a programme to be
reasonable, ‘appropriate financial and human resources [must be]
available’.238 The Court has as yet not elaborated on this tantalising
phrase. It is clear that the Court is loath to prescribe to the state how and on
what it must spend its money and to tell it that it must expend resources so
as to do something it did not plan to do and does not want to do.239
However, this phrase does seem to indicate that the Court will not allow the
state to adopt mere token measures. Where the state has itself decided and
so undertaken to do something, it is under a legal duty, which the Court
would be able to enforce, to allocate the resources reasonably necessary to
execute its plans.
In Kutumela, for example, the plaintiffs had applied for the Social Relief
of Distress Grant, but despite clearly qualifying for it, did not receive it.
Their complaint was that although in terms of the Social Assistance Act and
its regulations, provincial governments were required to provide the grant to
qualifying individuals on successful application, the North West Province
had not dedicated the necessary human, institutional and financial resources
to do so. The grant was consequently available on paper only and not in
practice. The case resulted in a settlement order that in essence required the
province to dedicate the necessary human, institutional and financial
resources to provide the grant. Specifically, it required the province to
acknowledge its legal responsibility to provide Social Relief of Distress
Grants effectively to those eligible for it and then to devise a programme to
ensure its effective provision. This programme must enable it to process
applications for Social Relief of Distress Grants on the same day on which
they are received, must enable its officials appropriately to assess and
evaluate such applications and must enable the eventual payment of the
grant. Importantly, the province was ordered to put in place the necessary
infrastructure for the administration and payment of the grant, inter alia, by
training officials in the province in welfare administration.240
The state’s measures must be both reasonably conceived and
reasonably implemented.241 This element is closely related to the
requirement of reasonable resourcing outlined above and means that it is
not sufficient for the state merely to adopt measures on paper. These
measures must also in fact be implemented effectively. The Kutumela case,
described above in the context of adequate resourcing, also illustrates this
element of the Court’s reasonableness standard. In effect, the Court in
Kutumela ordered the provincial government to implement a measure that
existed in concept but not in practice.
The state’s measures must be ‘balanced and flexible’, capable of
responding to intermittent crises and to short-, medium- and long-term
needs,242 may not exclude ‘a significant segment of society’,243 may
not ‘leave out of account the degree and extent of the denial’ of the
right in question and must respond to the extreme levels of deprivation
of people in desperate situations.244 These related requirements of
flexibility and ‘reasonable inclusion’ 245 formed the basis for the
Constitutional Court’s decisions in both Grootboom and Treatment Action
Campaign (No 2). In Grootboom, the Court found that the state’s housing
programme was inconsistent with sections 26(1) and (2) because it ‘failed
to recognise that the state must provide relief for those in desperate
need’.246 In Treatment Action Campaign (No 2), the Court held that the
state’s measures to prevent MTCT of HIV were inconsistent with the
Constitution because they ‘failed to address the needs of mothers and their
newborn children who do not have access’ 247 to the pilot sites where
Nevirapine was provided and because the programme as a whole was
‘inflexible’.248
In one sense, these different requirements all relate to the idea that the
state’s programmes must be comprehensive. Any state programme
designed to fulfil a socio-economic right will be incomplete and, as such,
unreasonable unless it includes measures through which short-term crises in
accessing the right can be addressed as well as measures that ‘provide relief
for those in desperate need’.249 These requirements relate to flexibility and
reasonable inclusion, and particularly the Constitutional Court’s phrase in
Grootboom that a programme must take account of the degree and the
extent of deprivation with respect to a right.250 However, the intriguing
question raised by these requirements is whether the Court’s reasonableness
test in this respect requires state measures to prioritise efforts, both with
respect to temporal order and resource allocation, according to different
degrees of need. Does the test require the state to engage in ‘sensible
priority-setting, with particular attention to the plight of those in greatest
need’? 251
Roux has made a strong argument that it does not. He points out that the
Court’s finding in Grootboom requires ‘merely inclusion’ and that ‘a
government programme that is subject to socio-economic rights will [in
terms of this finding] be unreasonable if it fails to cater to a significant
segment of society’.252 With respect to the finding in Grootboom, Roux’s
reading is correct. The Court there clearly simply required the state to take
account of the needs of those most desperate without at the same time
suggesting that the needs of such people should in any concrete way take
precedence over other needs.253 However, it has been suggested that the
Court’s reasonableness test can take account of a prioritisation according to
need by varying the standard of scrutiny that it applies to particular alleged
breaches of socio-economic rights according to the degree of deprivation
suffered by those affected by the breach.254 According to this view, a
court would scrutinise state measures more rigorously where those
complaining of their impact are desperately deprived.
This idea has recently been given credence in Khosa. As pointed out
above, the Court in Khosa, possibly for a variety of reasons, applied a
substantially stricter standard of scrutiny to the state’s exclusion of
permanent residents than it applied to the state’s HIV prevention policy in
Treatment Action Campaign (No 2) or the state’s housing programme in
Grootboom. The Court in Khosa applied a proportionality test, weighing the
impact that the exclusion had on the dignity and practical circumstances of
indigent permanent residents against the purposes for which the state had
introduced the exclusion. The Court did not only find that the basic survival
interests of the excluded permanent residents should take precedence over
the legitimate purposes for their exclusion.255 It also by implication held
that the basic survival needs of the permanent residents should take
precedence over further expansion of the social assistance system as it
applies to South African citizens. This was illustrated by the rejection of the
state’s arguments that to include permanent residents in the social assistance
scheme would place an undue financial burden on the state and would
potentially require the diversion of resources from other social assistance
needs.256 The most important factor determining the Court’s robust
scrutiny in this respect was ‘the severe impact [that the exclusion of
permanent residents from the scheme was likely to have] on the dignity of
the persons concerned, who, unable to sustain themselves, have to turn to
others to enable them to meet the necessities of life and are thus cast in the
role of supplicants’.257
The state’s measures must be transparent in the sense that they must
be made known both during their conception and once conceived to all
affected.258 This final element of the Court’s reasonableness test was
added in Treatment Action Campaign (No 2) where the Court held that for a
programme to be reasonable, its ‘contents must be made known
appropriately’.259 As Treatment Action Campaign (No 2) itself illustrated,
litigants in socio-economic rights cases face great difficulties if it is not
possible to ascertain with certainty what the state’s measures entail. In a
basic sense, to be able to challenge the state’s position, a litigant has to be
able to pinpoint what exactly it is. In this respect, the requirement of
transparency is practically very important.260

PAUSE FOR REFLECTION

Viewing socio-economic rights jurisprudence

through the prism of equality
The Constitutional Court’s focus on the relative deprivation
of the group suffering from the breach – in other words, its
insistence on taking account of whether those excluded are
vulnerable and in particular need of state intervention to
affirm their human dignity – arguably echoes the Court’s
approach to section 9 of the Constitution. Recall that the
Court has stated that in deciding whether there was unfair
discrimination in terms of section 9(3) of the Constitution,
the Court will have regard to the position of the
complainant in society and will ask whether he or she
belongs to a group which was previously discriminated
 against or is still vulnerable. Similarly, when the Court has
to decide whether the state has acted reasonably, it will
have regard to the vulnerability of the group which is being
excluded or is not gaining access to the social and
economic benefit to the same degree as others who are
less vulnerable. It has therefore been argued that one way
of understanding the social and economic rights
jurisprudence of the Constitutional Court is to view it
through the prism of equality.261 If viewed thus, the
reasonableness requirement can look much like the
requirement for contextual fairness which is at the heart of
the equality jurisprudence of the Constitutional Court.

16.7.3.3.4 The state must continually review its plan

In Mazibuko, the Constitutional Court held that apart from showing that the
plan adopted by the state is reasonable, the concept of progressive
realisation also imposes an obligation on the state to review and revise
continuously its plan to ensure that social and economic rights are
progressively achieved.262 A plan that is set is stone and never revisited,
the Constitutional Court held further, is unlikely to be a plan that will result
in the progressive realisation of rights consistently with the obligations
imposed by the social and economic rights in the Constitution.

16.7.3.4 Meaningful engagement

When a state entity implements social and economic rights, it is required to
treat affected individuals and groups with dignity. An excessively
technocratic approach that does not take into account the needs and wishes
of those affected might not be reasonable. The Constitutional Court
therefore developed the notion of meaningful engagement in Occupiers of
51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City
of Johannesburg and Others.263
Although this case dealt with the potential eviction of a large group of
individuals from the inner city of Johannesburg, the principle of reasonable
accommodation could also be applied to other situations in which the state
acts to upgrade services to give effects to the realisation of social and
economic rights. This insight stems from the Constitutional Court’s remarks
in Grootboom on the relationship between reasonable state action and the
need to treat human beings with the appropriate respect and care for their
dignity. In Grootboom the Court remarked:
All levels of government must ensure that the housing
program is reasonably and appropriately implemented
in the light of all the provisions in the Constitution. All
implementation mechanisms and all State action in
relation to housing falls to be assessed against the
requirements of s 26 of the Constitution. Every step at
every level of government must be consistent with the
constitutional obligation to take reasonable measures to
provide adequate housing … The proposition that rights
are interrelated and are all equally important is not
merely a theoretical postulate. The concept has immense
human and practical significance in a society founded on
human dignity, equality and freedom. It is fundamental
to an evaluation of the reasonableness of State action
that account be taken of the inherent dignity of human
beings. The Constitution will be worth infinitely less than
its paper if the reasonableness of State action concerned
with housing is determined without regard to the
fundamental constitutional value of human dignity.264
In the context of evictions in Occupiers of 51 Olivia Road, the probability
arose that people would become homeless as a direct result of their eviction
at the state’s instance. In these circumstances, those involved in the
management of the municipality ought at the very least to have engaged
meaningfully with the occupiers both individually and collectively.265 The
Court explained that such an engagement was ‘a two-way process’ in which
all parties needed to engage meaningfully with one another.266 There is no
closed list of the objectives of engagement. However, the Court listed some
of the objectives of engagement in cases of pending eviction:
(a) what the consequences of the eviction might be;
(b) whether the city could help in alleviating those dire
consequences;
(c) whether it was possible to render the buildings
concerned relatively safe and conducive to health for
an interim period;
(d) whether the city had any obligations to the occupiers
in the prevailing circumstances; and
(e) when and how the city could or would fulfil these
obligations. 267
In the case of a pending eviction the authority who wishes to effect the
eviction ‘must make reasonable efforts to engage’ before it can effect such
an eviction.268 The engagement process should preferably be managed by
careful and sensitive people on the side of the municipality.269 This forms
part of the general obligation on the state body to act reasonably. In
Grootboom, the Court remarked that ‘[e]very step at every level of
government must be consistent with the constitutional obligation to take
reasonable measures to provide adequate housing’.270 As the Court stated
in Occupiers of 51 Olivia Road:
It may in some circumstances be reasonable to make
permanent housing available and, in others, to provide
no housing at all. The possibilities between these
extremes are almost endless. It must not be forgotten
that the City cannot be expected to make provision for
housing beyond the extent to which available resources
allow. As long as the response of the municipality in the
engagement process is reasonable, that response complies
with section 26(2). The Constitution therefore obliges
every municipality to engage meaningfully with people
who would become homeless because it evicts them. It
 also follows that, where a municipality is the applicant in
eviction proceedings that could result in homelessness, a
circumstance that a court must take into account to
comply with section 26(3) of the Constitution is whether
there has been meaningful engagement.271
However, the process of engagement will work only if both sides act
reasonably and in good faith. Civil society organisations that support the
peoples’ claims should preferably facilitate the engagement process in
every possible way.272 An important prerequisite for meaningful
engagement is openness and transparency on the side of the state institution
as secrecy is counterproductive to the process of engagement.273

16.7.3.5 Within available resources

The state’s duty to fulfil socio-economic rights must be exercised ‘within its
available resources’.274 Liebenberg points out that this phrase both
provides an excuse and imposes a duty on the state.275 It allows the state to
attribute its failure to realise a socio-economic right to budgetary
constraints and it requires the state in fact to make resources available with
which to realise a right.276
The Constitutional Court has been circumspect in scrutinising budgetary
issues. In some cases it has avoided them altogether. In Soobramoney, the
Court simply accepted the state’s contention that resources were limited as a
given and allowed that fact to determine its decision. The Court
interrogated neither the allocation for health purposes from national
government nor in any rigorous way the manner in which it was used at
provincial level.277 In Grootboom, resource constraints were not a direct
issue. Equally, in Treatment Action Campaign (No 2) with respect to the
question whether the provision of Nevirapine should be extended to public
health facilities where the necessary counselling and monitoring
infrastructure already existed, the question of the availability of resources
was obviated. The manufacturers of Nevirapine had undertaken to provide
it for free for five years and no additional infrastructural spending was
required to proceed with the extension to such facilities.278
In those instances where budgetary issues could not be avoided, the
Court has required the state to persuade it of its financial constraints.279 It
has then proceeded to scrutinise the state’s assertions in this respect but on
its own terms – that is, taking the limits of the existing budget allocations as
a given. The Court has not scrutinised initial budgetary decisions at
macroeconomic level.
In Treatment Action Campaign (No 2) with respect to the extension of
the programme to prevent MTCT of HIV to facilities without the necessary
counselling and monitoring infrastructure, the state indeed objected that it
did not have the requisite resources. The Court engaged with and rejected
this argument. First, since the litigation between the Treatment Action
Campaign and the state had commenced, some provincial governments had
proceeded with the extension of the provision of Nevirapine to facilities
other than the pilot sites despite the asserted resource constraints.280 This
demonstrated to the Court that in fact ‘the requisite political will’, rather
than resources, was lacking.281 In addition, while the case was being heard,
the state announced that significant additional resources had been allocated
to deal with the HIV pandemic.282 The Court could therefore find that
whatever resource constraints had existed previously, existed no longer.283
In Khosa, the state also objected that it would not have the resources
with which to extend social assistance grants to indigent permanent
residents.284 Again, the Court considered and rejected this argument.285 It
could do so first because the state had not provided ‘clear evidence to show
what the additional cost of providing social grants to … permanent
residents would be’.286 As a result, the Court could not assess whether the
additional cost would place an untenable burden on the state.287 In
addition, the state provided the Court with evidence of current spending on
and projected increases in spending on social assistance.288 This enabled
the Court to point out that even at the most pessimistic estimate of the
additional cost occasioned by an extension of social assistance to permanent
residents,289 the additional burden on the state would in relative terms be
very small.290
The Court’s approach to scrutinising budgetary issues and to the
consequences of that scrutiny is perhaps best captured in a remark from
Treatment Action Campaign (No 2). The Court indicated that its scrutiny is
not in itself ‘directed at rearranging budgets’, but that its scrutiny ‘may in
fact have budgetary implications’.291 This remark seems clearly to indicate
that the Court will neither directly interrogate nor prescribe the state’s initial
allocational decisions at macroeconomic level. At the same time, it will not
be discouraged from interrogating the reasonableness of state measures
according to the standard described above even if a finding of
unreasonableness would have the consequence that the state would itself
have to rearrange its budget.292
This distinction between the Court itself rearranging budgets and taking
decisions that have the consequence that the state must rearrange budgets is
of course at least sometimes a fiction – as with the distinction between
effectiveness and relative effectiveness discussed above. The effect of the
decision in Khosa, although the Court does not present itself as ‘rearranging
budgets’, is that the state has to allocate additional resources (however
slight an amount in relative terms) to an item that it did not want to finance.
However, as Roux argues, this is perhaps a useful fiction as it has the
singular virtue of allowing the Court to interfere in allocational choices to
the extent required to enforce a right without directly admitting to it. As
such, it avoids direct confrontation with the executive.293
More recently, in Blue Moonlight Properties, the City of Johannesburg
objected on appeal to the Constitutional Court against a decision of the
SCA that it should find the resources to provide temporary alternative
housing for people evicted from their homes by private property owners
despite the fact that it had not budgeted for this. The City argued that it
could not during the course of any given financial year reallocate resources
for emergency use to provide such alternative accommodation if this had
not been budgeted for. Such expenditure, they continued, would be
unlawful. The Constitutional Court responded simply by holding that the
City could not avoid its constitutional responsibilities only by asserting that
it had not budgeted for that purpose. If it had not done so, it had to find the
money, in effect, somewhere.294

16.8 Remedies in socio-economic rights

cases
In constitutional matters, including matters dealing with socio-economic
rights, courts have wide remedial powers. We have already discussed the
various remedies that courts can grant to vindicate rights in chapter 11.
However, the specific nature of the duties imposed by social and economic
rights raises additional questions about the nature of the remedies granted
by a court in cases dealing with a breach of these rights. We therefore
highlight issues relating to the specific vindication of social and economic
rights in this subsection. However, this subsection must be read in
conjunction with the discussion in chapter 11. Section 38 of the
Constitution determines that courts must in such matters provide
‘appropriate relief, including a declaration of rights’, while section 172
empowers courts to declare invalid law or conduct inconsistent with the
Constitution and, in addition, to provide any order that is ‘just and
equitable’.295 The Constitutional Court has been clear that these powers
allow it to fashion new remedies where necessary to ‘protect and enforce
the Constitution’.296 An important consideration for the Court in this
respect is that the remedies it provides, whether new or existing, must be
effective.297
In most of the kinds of socio-economic rights cases described above,
providing ‘appropriate relief’ is unproblematic. It requires courts to do little
else than they are used to doing in cases decided on the basis of other rights
or indeed cases decided on the basis of the common law or ordinary
legislation. However, when courts are required to provide relief in cases
where the state has breached the duty to fulfil socio-economic rights, or
where the state has interfered in the existing exercise of a socio-economic
right and is under a duty to mitigate the impact of that interference, their
position is often more difficult. In these cases, the Court’s finding requires
the state to act affirmatively in order to remedy its breach of the right, to
amend its policy or adopt a new policy, or to provide a service that it is not
currently providing or to extend a service to people who do not currently
qualify for it. Such cases necessarily involve ‘amorphous, sprawling party
structures, allegations broadly implicating the operations of large public
institutions such as schools systems … mental health facilities … and
public housing authorities, and remedies requiring long term restructuring
and monitoring of these institutions’, policies and programmes.298 Courts
are consequently faced with having to decide to what extent to prescribe
directly to the state what it must do, and to what extent and in what manner
to retain control of the implementation of their orders, to see that indeed
they will be effective.
An obvious way for courts to retain control of the implementation of
their orders is through so-called structural or supervisory interdicts.299
These orders would usually require the state to draft a plan for its
implementation of the order, which could then be submitted to the court and
the other party for approval, and then periodically to report back to the
court and the other party with respect to its implementation of that plan.
The court could manage the supervision on its own, through the other party
to the litigation or through a court-appointed supervisor.300
In the two cases where such a supervisory interdict could perhaps have
played a role, the Constitutional Court has elected not to use it. In
Grootboom, the Court issued a simple declaratory order, leaving the remedy
of the constitutional defect in its housing programme entirely to the
state.301 In Treatment Action Campaign (No 2), the Court similarly issued
a declarator coupled with a mandatory order requiring the state to remedy
the constitutional defect in its programme for prevention of MTCT of
HIV.302 However, despite confirming that it did indeed have the power to
do so, the Court again declined to issue a supervisory interdict, holding that
there was no indication that the state would not implement its order
properly.303
Although the Court’s failure particularly in Grootboom to use a
supervisory interdict certainly trenched on the effectiveness of its order,304
it is understandable that the Court is circumspect in its use of these
remedies. Structural interdicts have to be very carefully crafted to be
effective.305 More importantly, structural interdicts have the potential to
erode the legitimacy of the Court, both because they directly and on an
ongoing basis place the Court in confrontation with the executive, and
because they can involve the Court in the day-to-day management of public
institutions, something at which it is almost bound to fail.306 Whether or
not a structural interdict will be appropriate in a given case will depend on
the nature of the breach in question and particularly on the nature of the
remedy of that breach.307

SUMMARY

Social and economic or socio-economic rights are often distinguished from

civil and political rights on the basis that they engender different types of
duties. However, although there may be qualitative differences in the nature
of the duties imposed by socio-economic rights, in principle there is little
difference between these rights and civil and political rights. Both types of
rights impose so-called negative and positive duties on the state. Negative
duties require the state to refrain from infringing existing rights while
positive duties require the state to take positive steps to ensure the
enjoyment of the rights.
Socio-economic rights sometimes raise questions about the role of the
court in enforcing human rights in the light of the separation of powers
doctrine. For reasons relating to pragmatic concerns, courts are therefore
often more willing to enforce socio-economic rights in a robust fashion
when these rights are given effect to by ordinary legislation or when the
court is merely asked to enforce existing policy decisions taken by the
executive. Courts also seem to be more willing to enforce socio-economic
rights if the infringement is of a negative nature than when it requires
positive action from the state to adhere to the duties imposed by these
rights.
At the heart of the positive obligations of the state to realise socio-
economic rights is the requirement to act reasonably. To be reasonable, the
state’s measures must be balanced and flexible, capable of responding to
intermittent crises and to short-, medium- and long-term needs, may not
exclude a significant segment of society, may not leave out of account the
degree and extent of the denial of the right in question and must respond to
the extreme levels of deprivation of people in desperate situations. The
measures also need to be comprehensive and co-ordinated. An important
factor taken into account by the courts is the degree of deprivation suffered
by those affected by the breach. The process through which the state body
chooses to implement its obligations is important as this also needs to be
reasonable. To this end, the state may well have to engage meaningfully
with affected individuals and groups to deal with any possible negative
consequences of its actions and to ensure that it treats individuals with the
requisite human dignity.308
1 Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1)
SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997) para 8.
2 See Soobramoney.
3 See Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v
Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505
(CC); 2004 (6) BCLR 569 (CC) (4 March 2004).
4 S 34(1)(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
(PEPUDA) lists socio-economic status as one of a number of grounds that must be considered
by the Equality Review Committee established in terms of s 32 of the Act for future inclusion
in the list of prohibited grounds. The special consideration accorded socio-economic status in
s 34 indicates that, at the very least, socio-economic status will be regarded, for purposes of the
PEPUDA, as a ground analogous to the listed grounds. This seems to indicate that the
legislature regards it for constitutional purposes also to be a ground analogous to those listed in
s 9(3) of the Constitution. See, in general, De Vos, P (2004) The Promotion of Equality and
Prevention of Unfair Discrimination Act and socio-economic rights ESR Review: Economic
and Social Rights in South Africa 5(2):7–11.
5 (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November
1997).
6 Soobramoney para 4.
7 Soobramoney para 19. For a discussion of the space this leaves for advancing claims for
material conditions for welfare through the right to life, see Pieterse, M (1999) A different
shade of red: Socio-economic dimensions of the right to life in South Africa South African
Journal on Human Rights 15(3):372–85 at 384. Mr Soobramoney died a few days after this
judgment was handed down.
8 See De Villiers, N (2002) Social grants and the Promotion of Administrative Justice Act South
African Journal on Human Rights 18(3):320–49 at 320; Van der Walt AJ (2002b) Sosiale
geregtigheid, prosedurele billikheid, en eiendom: Alternatiewe perspektiewe op grondwetlike
waarborge (Deel Een) Stellenbosch Law Review 13(5):59–82 at 59; Van der Walt, AJ ‘A South
African reading of Frank Michelman’s theory of social justice’ in Botha, H, Van der Walt, AJ
and Van der Walt, JC (2003) Rights and Democracy in a Transformative Constitution 172–4,
187–9.
9 (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October
2009).
10 Act 32 of 2000.
11 Joseph para 38.
12 Joseph para 39.
13 The realisation that rights impose such different kinds of duties is usually attributed to Henry
Shue (Shue, H (1980) Basic Rights: Subsistence, Affluence and US Foreign Policy). His
typology is widely adopted in international law circles. See Van Hoof, GJH (1984) ‘The legal
nature of economic, social and cultural rights: A rebuttal of some traditional views’ in Alston,
P and Tomasevski, K (eds) The Right to Food (1984) 97, 99; Group of Experts on Limburg
Principles (1998) The Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights Human Rights Quarterly 20(3):691–704 para 6; Committee on ESCR General
Comment No 12 The right to adequate food (art 11 of the Covenant) UN Doc E/2000/22
para 15; General Comment No 14 The right to the highest attainable standard of health (art 12
of the Covenant) UN Doc E/C 12/2000/4 paras 33–7; General Comment No 15 The right to
water (arts 11 and 12 of the Covenant) UN Doc E/C 12/2002/11 paras 20–9.
14 See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 78
where the Constitutional Court stated: ‘At the very minimum, socio-economic rights can be
negatively protected from improper invasion.’ See generally De Vos, P (1997) Pious wishes or
directly enforceable human rights: Social and economic rights in South Africa’s 1996
Constitution South African Journal on Human Rights 13(1):67–101 at 79–83; Liebenberg, S
(2010) Socio-Economic Rights: Adjudication Under a Transformative Constitution 82–7.
15 De Vos (1997) 83–6.
16 For example, De Vos conflates these two duties in his discussion of s 7(2). See De Vos (1997)
86–91.
17 Liebenberg, S ‘The interpretation of socio-economic rights’ in Woolman, S and Bishop, M
(eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 33.1–33.66.
18 Budlender, G ‘Justiciability of socio-economic rights: Some South African experiences’ in
Ghai, Y and Cottrell, J (eds) (2004) Economic, Social and Cultural Rights Cultural Rights in
Practice: The Role of Judges in Implementing Economic, Social and Cultural Rights
Commonwealth Secretariat 37.
19 See De Vos (1997) 86. See also Government of the Republic of South Africa and Others v
Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169
(4 October 2000) paras 35–6.
20 Committee on ESCR General Comment No 14 The right to the highest attainable standard of
health (art 12 of the Covenant) UN Doc E/C 12/2000/4 para 33.
21 See Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC
25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004) paras 31–4 where the
Constitutional Court discusses the distinction between the negative duty to respect the right to
have access to adequate housing and the positive duty to fulfil it. See also Grootboom para 34.
22 See, for example, the following remarks of the Constitutional Court in the First Certification
judgment para 78:
The objectors argued further that socio-economic rights are not justiciable, in
particular because of the budgetary issues their enforcement may raise. The fact
that socio-economic rights will almost inevitably give rise to such implications does
not seem to us to be a bar to their justiciability. At the very minimum, socio-
economic rights can be negatively protected from improper invasion.
23 (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002).
24 Liebenberg (2013) 33.19. By the same token, the provisions of the Social Assistance Act 59 of
1992 that were challenged in Khosa could be described as either negative or positive
infringements of the right to have access to social assistance.
25 With respect to the blurring of the distinction between positive and negative constitutional
duties, see in general Bandes, S (1990) The negative constitution: A critique Michigan Law
Review 88(8):2271–347.
26 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999) para 16. See
also Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration
of Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004
(5) BCLR 445 (CC) (3 March 2004) para 28.
27 Viljoen, F (2005) The justiciability of socio-economic and cultural rights: Experience and
problems (Unpublished paper on file with author) 6 notes that, on the African continent, ‘only
a handful of states, notably Botswana, Nigeria and Tunisia, … do not explicitly guarantee any
socio-economic … rights’ and that socio-economic rights are included in a large number of
Latin-American constitutions.
28 For example, in a recent Colombian decision, the Court held, on the basis of the right to health
care, that an AIDS sufferer was entitled to the provision, at state expense, of those health
services essential to keep him alive and to restore his health. See Rights of sick persons/AIDS
patients, Constitutional Court of Columbia, Judgment No T-505/92, 22 August 1992. A Latvian
court held that legislation conditioning access to social security benefits on the payment by
employers of contributions on behalf of their employees was invalid on the basis of the right to
social security (s 109 of the Latvian Constitution). See Constitutional Court of the Republic of
Latvia, Case No 2000-08-0109. Also see Viljoen (2005) 10–11, 15.
29 See, for example, Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and
Another (1996) AIR SC 2426 (right to emergency medical treatment read into the right to life)
and the references of the Constitutional Court to this case in Soobramoney para 18); Francis
Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 2 SCR 516 529 (right to
food read into the right to life).
30 In Milk and Butterfat BVerfGE 18, 315, the Court upheld price control regulations against a
freedom of competition-based constitutional challenge because it held that the state, in terms of
the social state principle, is obliged to combat high food prices so as to protect access to basic
foodstuffs.
31 See, for example, with respect to equality, the Canadian case of Eldridge v British Columbia
(Attorney General) 1997 151 DLR (4th) 577 SCC where the Court held that the state is
required to provide sign language interpretation for deaf patients as part of the publicly funded
health care system. See with respect to due process, the US cases of Goldberg v Kelly 397 US
254 (1970) and Sniadach v Family Finance Corp 395 US 337 (1969) where the Courts held
that a hearing is required before access to welfare benefits is revoked. For a view that the latter
two cases could, when they were decided, have been read to give expression to welfare rights
in the US Constitution, see Michelman, FI ‘Formal and associational aims in procedural due
process’ in Pennock, JR and Chapman, JW (eds) (1977) Due Process (Nomos XVII) 126.
32 Liebenberg, S (1995) ‘The International Covenant on Economic, Social and Cultural Rights
and its implications for South Africa South African Journal on Human Rights 11(2):359–78 at
359.
33 Grootboom para 26. See also, for example, the references in Grootboom paras 28 and 45 to the
ICESCR and the Committee on ESCR.
34 The Committee has to date published 21 General Comments dealing with a wide range of
topics related to the interpretation of the various aspects of the ICESCR. ICESCR (UN
Commission on Economic, Social and Cultural Rights) (1990) General Comment No 3 The
nature of States parties obligations (Art. 2, par.1 of the Covenant), available at
http://www.refworld.org/docid/4538838e10.html, is of particular importance as the
Constitutional Court relied partly on it when it developed the South African jurisprudence on
social and economic rights enforcement.
35 Arts 22–6.
36 Arts 3 and 10–14.
37 Arts 4, 6(2), 19, 20, 24, 26–9 and 31.
38 An exception is Social and Economic Rights Action Centre (SERAC) and the Centre for
Economic and Social Rights (CESR) v Nigeria Communication 155/96 (October 2001), a
complaint brought against Nigeria for the destruction and wilful neglect, in collusion with an
international oil mining consortium, of natural resources, agricultural land and livestock on
which the Ogoni people depended for their livelihood. The African Commission found that
Nigeria had a duty to protect the socio-economic rights of its citizens against invasion from
private sources, that it had facilitated the invasion of these rights by allowing and participating
 in the actions of oil companies and that it was consequently in violation of arts 2, 4, 14, 16,
18(1), 21 and 24 of the African Charter. See Mbazira, C (2004) Reading the right to food into
the African Charter on Human and Peoples’ Rights ESR Review 5(1):5–7 at 5.
39 See (1987) Limburg Principles on the Implementation of the Covenant on Economic, Social
and Cultural Rights Human Rights Quarterly 9(2):122–35 at 124.
40 See (1998) The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights
Human Rights Quarterly 20(3):691–704 at 691.
41 See (1995, December) Bangalore Declaration and Plan of Action reprinted in International
Commission of Jurists 55:219–27.
42 The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
which establishes an individual complaints mechanism, was adopted in 2008. It achieved the
required 10 ratifications to enter into force only in 2013 and entered into force on 5 May 2013.
43 See Brand, D ‘The minimum core content of the right to food in context: A response to Rolf
Künneman’ in Brand, D and Russell, S (eds) (2002b) Exploring the Core Content of Socio-
economic Rights: South African and International Perspectives 100–2 for a more extensive
discussion of this point. See also Craven, M ‘Introduction to the International Covenant on
Economic, Social and Cultural Rights’ in Blyberg, A and Ravindran, DJ (eds) (2000) A Circle
of Rights: Economic, Social and Cultural Rights: A Training Resource 49, 55. The approach
that the Constitutional Court has adopted to the adjudication of socio-economic rights claims –
its reasonableness review approach – in many respects amounts to the same kind of generalised
policy review method as that applied in the reporting system of the Committee on ESCR. As
such, this approach to some extent obviates this particular difficulty with the use of
international law norms.
44 Viljoen (2005) 3.
45 Michelman, FL (2003) The constitution, social rights, and liberal political justification
International Journal of Constitutional Law 1(1):13–34 at 14.
46 Klare, KE (1998) Legal culture and transformative constitutionalism South African Journal on
Human Rights 14(1):146–88 at 147.
47 Klare refers in addition to adjudication, legislation and executive and administrative action to
police procedure, extra-legal dispute resolution and budgetary processes as ‘sites of law-
making’ at 147.
48 Bilchitz, D (2003) Towards a reasonable approach to the minimum core: Laying the
foundations for future socio-economic rights jurisprudence South African Journal on Human
Rights 19(1):1–26 at 7–9.
49 For a more detailed description of the SAHRC’s work in this respect, see Kollapen, J (1999)
Monitoring socio-economic rights: What has the SA Human Rights Commission done? ESR
Review 1(4):18–20; McClain, CV (2002) The SA Human Rights Commission and socio-
economic rights: Facing the challenges ESR Review 3(1):8–9. For a critique of the SAHRC’s
work in this respect, see Brand, D (1999) The South African Human Rights Commission: First
economic and social rights report ESR Review 2(1):18–20; Brand, D and Liebenberg, S (2000)
The South African Human Rights Commission: The second economic and social rights report
ESR Review 2(3):12–6.
50 See also sections 24(b) and 25(5) of the Constitution.
51 Examples of such legislation with respect to specific socio-economic rights are discussed in
detail in other chapters and will not be listed here.
52 See, for example, Chs 3 and 4 of the Social Assistance Act 13 of 2004 and the South African
Social Security Agency Act 9 of 2004.
53 See Ch 2 of the Social Assistance Act that creates entitlements for eligible persons to a Child
Support Grant, a Care Dependency Grant, a Foster Child Grant, a Disability Grant, a War
Veteran’s Grant, an Older Person’s Grant, a Grant-in-Aid and a Social Relief in Distress Grant.
54 See, for example, ss 8(1) and 11(1), (2) and (3) of the Extension of Security of Tenure Act 62
of 1997 (ESTA).
55 S 38 states:
Anyone listed in this section has the right to approach a competent court, alleging
that a right in the Bill of Rights has been infringed or threatened, and the court
may grant appropriate relief, including a declaration of rights. The persons who
may approach a court are –
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
56 Case 671/2003 23 October 2003 (B). Our thanks to Nick de Villiers, of the Legal Resources
Centre in Pretoria, for providing us with a copy of the order.
57 Government Gazette No 22355, Notice R 509 of 2001 (8 June 2001).
58 Act 108 of 1997.
59 (CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) (8 October
2009).
60 Mazibuko para 66.
61 Mazibuko para 70.
62 For a discussion, see Viljoen (2005) 12–3; Scheinin, M ‘Economic and social rights as legal
rights’ in Eide, A, Krause, C and Rosas, A (1995) Economic, Social and Cultural Rights: A
Textbook 61.
63 See Williams, LA ‘Welfare and legal entitlements: The social roots of poverty’ in Kairys, D
(ed) (1998) The Politics of Law: A Progressive Critique 570–1; Simon, WH (1986) Rights and
redistribution in the welfare system Stanford Law Review 38(6):1431–1516 at 1467–77.
64 Much of the social legislation that has so far been enacted is explicit as to this purpose. See, for
example, the Preamble of the Social Assistance Act which states that one purpose of the Act is
to give effect to section 27(1)(c) of the Constitution. Courts, in their interpretation of such
legislation, have also emphasised the link between social legislation and the constitutional
rights to which it gives effect. See, for example, with respect to the relationship between the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)
and ss 26(3) and 25 of the Constitution, Port Elizabeth Municipality v Various Occupiers (CCT
53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004)
para 17 and Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4)
SA 1222 (SCA) para 21.
65 So, for example, in Grootboom para 52, with regard to the Housing Act 107 of 1997, the
Constitutional Court found the statutory framework for the state’s measures to give effect to
the right to have access to adequate housing to be lacking in that it made no provision for
temporary relief for people in a housing crisis.
66 2002 (6) BCLR 625 (W).
67 Residents of Bon Vista Mansions para 20.
68 Residents of Bon Vista Mansions para 21.
69 Residents of Bon Vista Mansions paras 28–30.
70 2003 (11) BCLR 1236 (C).
71 Act 19 of 1998.
72 City of Cape Town v Rudolph and Others 2003 (11) BCLR 1236 (C) 74H–75J.
73 Act 3 of 2000.
74 Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09)
[2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009).
75 See Pieterse-Spies, A (2011) Reasonableness, subsidiarity and service delivery: A case
discussion SA Public Law 26(1):329–40.
76 1997 (6) BCLR 789 (C).
77 B para 37.
78 B paras 35–6 and 60.
79 See Minister of Public Works and Others v Kyalami Ridge Environmental Association and
Others (Mukhwevho Intervening) (CCT 55/00) [2001] ZACC 19; 2001 (3) SA 1151 (CC);
2001 (7) BCLR 652 (CC) (29 May 2001) where the Court upheld a decision by the appellant to
house a group of flood victims on land belonging to it against a challenge on the basis of
administrative justice rights partly because the appellant took the decision to give effect to the
right to have access to adequate housing.
80 The complaint in Treatment Action Campaign was, in essence, that the state’s executive
definition of its duties in terms of the right to have access to health care services in the context
of the prevention of mother-to-child transmission of HIV at birth fell short of the requirements
of the right.
81 S 172(1)(a) of the Constitution requires and so empowers courts to declare any law or conduct
inconsistent with the Constitution invalid to the extent of its inconsistency. Socio-economic
rights are included in the scope of this power.
82 See Du Plessis and Others v De Klerk and Another (CCT8/95) [1996] ZACC 10; 1996 (3) SA
850; 1996 (5) BCLR 658 (15 May 1996) for a unanimous holding that the same term in
section 7(2) of the interim Constitution referred to statute, common law and customary law.
83 A court can also develop a common law rule to limit the right, provided that such a rule would
then have to be justifiable in terms of section 36(1) of the Constitution.
84 The textual basis for a Bill of Rights challenge to a statutory or common law rule relied on by
the state as against a private entity is s 8(1) of the Constitution. Similarly, the textual basis for a
Bill of Rights challenge to a statutory rule relied on by one private entity against another is
clearly s 8(1) of the Constitution. However, there is some controversy about whether the
textual basis for a challenge to a common law rule relied on by one private entity against
another is s 8(1) rather than s 8(2) read with s 8(3). The Constitutional Court in Khumalo and
Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771
(14 June 2002) rejected reliance on s 8(1) in a challenge directed at the existing common law
rules of defamation relied on by a private party. The Court opted instead to bring the Bill of
Rights to bear through s 8(2) and (3).
85 It seems that this would be the case, irrespective of whether the Bill of Rights is brought to
bear on a dispute through s 8(1) or s 8(2) and (3).
86 (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC)
(4 March 2004).
87 Ss 3(c), 4(b)(ii) and 4B(b)(ii) of the Social Assistance Act 59 of 1992 and s 3 of the Welfare
Laws Amendment Act 106 of 1997.
88 The various sections were found to be inconsistent with the Constitution, but were not
invalidated to the extent of their inconsistency. Instead, the Court read words into the sections
to remedy the constitutional defect. See Khosa para 98. See also Jaftha where the Court found
that provisions of the Magistrates’ Courts Act 32 of 1944 allowing for the sale in execution of
 debtors’ homes to satisfy judgment debt were inconsistent with s 26(1) of the Constitution. The
Court read words into the Act to remedy the defect.
89 2002 (4) SA 1 (SCA).
90 For a variety of reasons, the use of constitutional socio-economic rights in this indirect,
interpretative way to influence the existing law is potentially extremely important.
91 (172/2001) [2002] ZASCA 73; 2002 (6) SA 21 (SCA); [2002] 4 All SA 125 (SCA) (31 May
2002).
92 Eide points out that the focus on justiciability, as if that alone determines the relative status of
rights, diverts attention from the broader question of the ‘effective protection’ of socio-
economic rights, something that occurs through a variety of mechanisms, including
adjudication. See Eide, A ‘Future protection of economic and social rights in Europe’ in Bloed,
A et al (eds) (1993) Monitoring Human Rights in Europe: Comparing International
Procedures and Mechanisms 214. However, see An-Na’im, AA ‘To affirm the full human
rights standing of economic, social and cultural rights’ in Ghai and Cottrell (2004) 13, who
recognises the limitations of the justiciability debate, but points out that ‘the claim that judicial
enforcement of [socio-economic rights] is not possible or desirable, undermines the human
rights standing of these rights’ (our emphasis) and, accordingly, remains an important focus.
93 The idea that socio-economic rights are justiciable is also criticised from a more promising,
radically democratic perspective. The argument is that the judicialisation of issues of socio-
economic politics through the entrenchment of justiciable socio-economic rights could stifle
social action, impoverish political life and ultimately damage struggles for social justice. As
Davis has put it, justiciable socio-economic rights might ‘erode the possibility for meaningful
public participation in the shaping of the societal good’. See Davis, DM (1992) The case
against the inclusion of socio-economic demands in a bill of rights except as directive
principles South African Journal on Human Rights 8(4):475–90 at 488–90. See also Bakan, J
‘What‘s wrong with social rights’ in Bakan, J and Schneiderman, D (eds) (1992) Social Justice
and the Constitution: Perspectives on a Social Union for Canada 85; Ghai, Y and Cottrell, J
‘The role of the courts in the protection of economic, social and cultural rights’ in Ghai and
Cottrell (2004) 88.
94 Roux, T (2003) Legitimating transformation: Political resource allocation in the South African
Constitutional Court Democratisation 10:92–111 at 92–3.
95 An-Na’im (2004) 7.
96 See First Certification paras 76–8.
97 See Grootboom para 41.
98 See Sunstein, CR (2001) Social and economic rights? Lessons from South Africa
Constitutional Forum 11(4):123–32 at 123.
99 The following quote from Chaskalson P for the Court in Soobramoney para 29 shows the
Court’s concern with both these issues:
The provincial administration which is responsible for health services in KwaZulu-
Natal has to make decisions about the funding that should be made available for
health care and how such funds should be spent. These choices involve difficult
decisions to be taken at the political level in fixing the health budget, and at the
functional level in deciding upon the priorities to be met. A court will be slow to
interfere with rational decisions taken in good faith by the political organs and
medical authorities whose responsibility it is to deal with such matters (our
emphasis).
See also Sachs J’s concurring judgment in the same case at para 58:
 Courts are not the proper place to resolve the agonising personal and medical
problems that underlie these choices. Important though our review functions are,
there are areas where institutional incapacity and appropriate constitutional
modesty require us to be especially cautious (our emphasis).
100 Grootboom para 32.
101 Roux (2003).
102 Grootboom para 41.
103 See Treatment Action Campaign (2) para 128 where the Court declined to consider the question
whether the state is under a duty to provide breastfeeding substitutes to HIV-positive mothers
to prevent the transmission of HIV to babies through breastfeeding after birth. The reason the
Court gave for this was because this question ‘raises complex issues’ that are best left to
government and health professionals to deal with and because sufficient information was not at
the disposal of the Court to make a finding in this respect.
104 See the Court’s remarks in Grootboom para 41 with respect to the extent to which it is willing
to interrogate the relative effectiveness of different policy options in the application of its
reasonableness test.
105 See Treatment Action Campaign (2) paras 124–33, in particular para 129.
106 We refer to only two, in some sense, arbitrary practical factors that influence the extent to
which courts feel themselves constrained in adjudicating socio-economic rights claims here.
There are, of course, many other, more nuanced factors that also influence constraint such as
the extent to which the adjudication of a particular case would involve a court in considering
questions of policy, the position of the claimants in society and the extent and degree of
deprivation motivating a claim. See in this respect De Vos (1997) 367; Bollyky, TJ (2002) R if
C>P+B: A paradigm for judicial remedies of socio-economic rights violations South African
Journal on Human Rights 18(2):161–200 at 165.
107 Either statutory subjective rights or statutory commands/commitments.
108 See De Villiers (2002) for an overview.
109 2003 (1) SA 113 (SCA). See also Port Elizabeth Municipality.
110 Graham v Ridley 1931 TPD 476.
111 Act 19 of 1998.
112 See also the ESTA and the Land Reform (Labour Tenants) Act 3 of 1996 (Labour Tenants Act).
113 The question was specifically whether the PIE Act applied to such evictions. See, for example,
Ellis v Viljoen 2001 (4) SA 795 (C) where the Court held that the PIE Act does not apply and
Bekker v Jika [2001] 4 All SA 573 (SE) where the Court held that the PIE Act does apply.
114 In Ross v South Peninsula Municipality 2000 (1) SA 589 (C), the High Court held that
section 26(3) changed the common law so that an applicant for an eviction order had to raise
circumstance that would persuade the court that it is just and equitable to grant the order in
addition to the common law showing. In Betta Eiendomme (Pty) Ltd v Ekple-Epoh 2000 (4) SA
468 (W) 473A–D, the High Court held that section 26(3) only applied to evictions by the state
and not to evictions by natural or juristic persons.
115 Brisley para 42.
116 Ndlovu; Bekker para 23.
117 In fact, the result was not exactly the same. Had the SCA developed the common law in line
with section 26(3) in Brisley, landowners seeking to evict unlawful occupiers in cases of
holding over would certainly have had to persuade courts to exercise their discretion in their
favour as they have to do in terms of the PIE Act. However, landowners would then not have
been subject to the stringent procedural requirements imposed by the PIE Act. The SCA’s
decision in Ndlovu; Bekker has therefore, counter-intuitively, in some respects made it more
 difficult for landowners to evict unlawful occupiers holding over than it would have been for
them had Brisley been decided differently.
118 Treatment Action Campaign (2) para 37. See also paras 35–6 and 60.
119 Brand, D ‘The proceduralisation of South African socio-economic rights jurisprudence, or
“What are socio-economic rights for?” ’ in Botha, H, Van der Walt, AJ and Van der Walt, JC
(2003) Rights and Democracy in a Transformative Constitution 53.
120 Heywood, M (2009) South Africa’s Treatment Action Campaign: Combining law and social
mobilization to realize the right to health Journal of Human Rights Practice 1(1):14–36 at 22–
3.
121 See the Constitutional Court’s indication in Grootboom that retrogressive steps in the process
of giving progressive realisation to socio-economic rights (essentially negative infringements
of such rights) ‘require the most careful consideration and would need to be fully justified by
reference to the totality of the rights provided for in the Covenant and in the context of the full
use of the maximum available resources’ – that is, that the Court would subject such negative
interferences in the exercise of socio-economic rights to especially robust scrutiny. See
Committee on ESCR General Comment 3 para 9 as quoted in Grootboom para 45. See also
Jaftha paras 61–4 where the Constitutional Court found that provisions of the Magistrates’
Courts Act violated the negative duty to respect the right to have access to adequate housing.
These provisions allowed for the sale in execution of a person’s home without adequate
judicial oversight. The Court proceeded to order the relatively intrusive remedy of reading
words into the Magistrates’ Courts Act in spite of submissions by the Minister of Justice that
the order of invalidity be suspended to allow the legislature to remedy the constitutional defect
in the Act. See, further, the discussion below of Port Elizabeth Municipality and
Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri
SA and Legal Resources Centre, amici curiae); President of the Republic of South Africa and
Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae)
2004 (6) SA 40 (SCA).
122 Pieterse, M (2003) Towards a useful role for section 36 of the Constitution in social rights
cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council South African
Law Journal 120(1):41–8 at 41. See also Khosa paras 83–4.
123 Remember, however, that some social and economic rights, such as the right to basic education
guaranteed in s 29, are not similarly qualified. As there has been no Constitutional Court case
directly invoking s 29 to hold the state to its obligation to provide basic education for all, it is
impossible to say whether the same separation of powers concerns will arise for the Court
when it does so.
124 In general terms, this means that the infringement must have occurred in terms of a rule (as
opposed to a once-off decision) that is clear, precise and public (accessible) and that applies in
equal measure to all those that it reaches. See the dissenting judgment of Kriegler J in
President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4;
1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 36. An infringement occasioned by
mere conduct, unrelated to law of general application, is incapable of justification – if the mere
fact of such an infringement is shown, the conduct in question is unconstitutional.
125 Grootboom paras 39–45 and Treatment Action Campaign (2) paras 38 and 123. In
Soobramoney paras 27 and 29, the Court applied an even more lenient basic rationality
standard of scrutiny.
126 In Khosa, the Constitutional Court confirmed a High Court ruling that the exclusion of
permanent residents from social assistance benefits violated the right of access to social
assistance (s 27(1)(c) of the Constitution). The measures were found unreasonable because the
 purpose of the exclusion (to prevent people who immigrated to South Africa from becoming a
burden on the state) could be achieved through means less restrictive of permanent residents’
rights (stricter control of access into the country) (para 65). Also, ‘the importance of providing
access to social assistance to all who live permanently in South Africa and the impact upon life
and dignity that a denial of such access has far outweighs the financial and immigration
considerations on which the state relies’ (para 82).
127 Grootboom para 41: ‘A court considering reasonableness will not enquire whether other more
desirable or favourable measures could have been adopted, or whether public money could
have been better spent. The question would be whether the measures that have been adopted
are reasonable. It is necessary to recognise that a wide range of possible measures could be
adopted by the state to meet its obligations. Many of these would meet the requirement of
reasonableness. Once it is shown that the measures do so, this requirement is met.’
128 In Jaftha para 34, the Court held that a measure negatively breaching the right to have access
to adequate housing ‘may … be justified under section 36 of the Constitution’.
129 Clearly, as the basic socio-economic rights are not qualified by the same ‘reasonable measures’
phrase that applies to the qualified rights, the reasonableness analysis does not apply to them
and breaches of these rights fall to be justified in terms of s 36(1). See Liebenberg (2013)
33.55. However, although this seems clear from the text, the Constitutional Court has been
ambiguous in its application of these basic rights, in particular the rights of children, in this
respect. In both Grootboom and Treatment Action Campaign (2), the Court, despite being
invited to do so, chose not to decide the dispute on the basis of children’s socio-economic
rights. Instead, the Court relied on the fact that the state conduct in question also breached
these rights to bolster its eventual finding that the conduct was unreasonable in terms of
ss 26(2) and 27(2) respectively. See Brand (2004) 48.
130 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA);
1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995) para 21.
131 Liebenberg (2013) 33.53.
132 Liebenberg (2013) 33.53–4; Brand (2004) 52–3.
133 Per Langa J in City Council of Pretoria v Walker (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363;
1998 (3) BCLR 257 (17 February 1998) para 82:
The rights guaranteed in Chapter 3 of the interim Constitution may be limited in
terms of section 33(1) of the interim Constitution. A requirement of section 33(1) is
that a right may only be limited by a law of general application. Since the
respondent’s challenge is directed at the conduct of the council, which was clearly
not authorised, either expressly or by necessary implication by a law of general
application, section 33(1) is not applicable to the present case.
134 Treatment Action Campaign (2) para 99.
135 S 1 states that South Africa is ‘one, sovereign, democratic state’ and lists the country’s
founding values as, inter alia, ‘[u]niversal adult suffrage, a national common voters roll,
regular elections and a multi-party system of democratic government, to ensure accountability,
responsiveness and openness’.
136 For an overview of the different ways in which people’s access to land and housing was
interfered with during this time, see Van der Merwe, D (1989) Land tenure in South Africa: A
brief history and some reform proposals Journal of South African Law 4:663–92.
137 S 25(2) and (3) of the Constitution. This means that dispossession of land by the state can only
occur through regular expropriation, for a public purpose, following the payment of just and
equitable compensation, the amount, time and manner of payment of which must be
determined after all relevant circumstances have been considered.
138 Act 62 of 1997. The ESTA applies to rural land occupied with the tacit or explicit consent of
the owner or person in charge. See s 2(1) of the ESTA and the definitions of ‘occupier’ and
‘consent’ in s 1.
139 The PIE Act applies to all land, including state-owned land (see ss 6 and 7). See also the
Labour Tenants Act which applies to rural land occupied and used in terms of a labour tenancy
agreement (s 1). In practice, this Act does not apply to state land as the labour tenancy
agreements that it is intended to regulate are usually with private landowners. The ESTA, the
PIE Act and the Labour Tenants Act also regulate private evictions.
140 Ss 8(1) and 11(1), (2) and (3) of the ESTA; ss 4(6) and (7), 5(1)(b) and 6(1) and (3) of the PIE
Act.
141 See District Six: Recalling the forced removals South African History Archive available at
http://www.saha.org.za/news/2010/February/district_six_recalling_the_forced_removals.htm.
142 Act 32 of 1944.
143 (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October
2004) para 34.The possible justification of this breach was considered by the Court in terms of
the s 36(1) proportionality test.
144 Jaftha paras 61–4.
145 (CCT 44/10) [2011] ZACC 14; 2011 (3) SA 608 (CC); 2011 (8) BCLR 792 (CC) (11 April
2011).
146 Alston, P and Scott, C (2000) Adjudicating constitutional priorities in a transnational context:
A comment on Soobramoney’s legacy and Grootboom’s promise South African Journal on
Human Rights 16(2):206–68 at 245–8.
147 Liebenberg (2013) 33.21.
148 See ss 9(3)(a), 10(2) and (3) and 11(3) of the ESTA and s 6(3)(b) of the PIE Act.
149 (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October
2004).
150 S 6(3)(c) of the PIE Act.
151 The SCA decision is reported as Baartman and Others v Port Elizabeth Municipality 2004 (1)
SA 560 (SCA).
152 Port Elizabeth Municipality para 58: ‘The availability of suitable alternative accommodation is
a consideration in determining whether it is just and equitable to evict the occupiers, it is not
determinative of that question.’ See also para 28: ‘There is therefore no unqualified
constitutional duty on local authorities to ensure that in no circumstances should a home be
destroyed unless alternative accommodation or land is made available.’
153 Port Elizabeth Municipality para 31.
154 Port Elizabeth Municipality paras 27, 28, 49 and 59.
155 Port Elizabeth Municipality paras 30 and 59.
156 Port Elizabeth Municipality paras 49 and 55.
157 Port Elizabeth Municipality para 59.
158 Port Elizabeth Municipality paras 45, 55–7 and 59.
159 Port Elizabeth Municipality para 58.
160 Port Elizabeth Municipality para 59.
161 2004 (6) SA 40 (SCA). The Constitutional Court affirmed the decision of the SCA in President
of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (CCT20/04)
[2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005).
162 Modderfontein Squatters para 21.
163 Modderfontein Squatters para 22.
164 Modderfontein Squatters para 26.
165 Modderfontein Squatters paras 43 and 52.
166 Modderfontein Squatters paras 43 and 52.
167 Although expressly indicating that it would not be proper for it to order the state to expropriate
the land in question (para 41), the Court did point out that in light of its order, it would be the
sensible thing for the state to do to expropriate the land (para 43).
168 Modderfontein Squatters para 22.
169 Modderfontein Squatters paras 35–8.
170 Modderfontein Squatters para 35.
171 Modderfontein Squatters paras 33, 37 and 38.
172 Modderfontein Squatters para 25.
173 (CC) [2011] ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) (1 December 2011).
174 Blue Moonlight Properties para 96.
175 Port Elizabeth Municipality para 16.
176 This interpretation leaves very little, if any, work for the s 27(3) right that other rights (such as
the prohibition on unfair discrimination) and other ordinary legal remedies (such as the rules of
the administrative law) do not in any event do. See Alston and Scott (2000).
177 Liebenberg (2013) 33.19.
178 (CCT 67/03) [2004] ZACC 6; 2005 (2) SA 476 (CC); 2004 (12) BCLR 1243 (CC)
(6 September 2004).
179 Proclamation R7 of 1996, Government Gazette 16992 GN R7, 23 February 1996. The
assignment was made in terms of s 235 of the interim Constitution.
180 Mashava para 1.
181 Mashava para 9.
182 Mashava para 10.
183 Act 50 of 1999.
184 Act 54 of 1972.
185 See the Labour Tenants Act, the ESTA and the PIE Act.
186 See, in general, Heyns, CH (1997) Extended medical training and the Constitution: Balancing
civil and political rights and socio-economic rights De Jure 30(1):1–17 at 1.
187 (CCT 55/00) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) (29 May
2001).
188 Kyalami Ridge para 40.
189 Kyalami Ridge paras 37–40.
190 See s 39(2) of the Constitution.
191 Simon (1986)1433–6; Williams (1998) 575–7.
192 See Van der Walt, AJ (2002a) Exclusivity of ownership, security of tenure, and eviction orders:
A model to evaluate South African land-reform legislation Journal of South African Law
2:254–89 at 254.
193 S 66(1)(a).
194 Jaftha paras 61–4 and 67. The factors that the Court lists at para 60 that should considered are:
‘the circumstances in which the debt was incurred; … attempts made by the debtor to pay off
the debt; the financial situation of the parties; the amount of the debt; whether the debtor is
employed or has a source of income to pay off the debt and any other factor relevant to the
… facts of the case …’ (our emphasis).
195 Jaftha paras 17, 31–4 and 52.
196 This is certainly due in the first place to the fact that few such cases have been brought to court
except in the area of eviction law. See, for example, Brisley. Second, courts have in those few
 cases where the development of the common law to protect socio-economic rights did come
into play, readily deferred to the legislature rather than drive the development themselves.
197 Afrox Healthcare para 21.
198 For critiques of this aspect of the judgment, see Brand, D (2002a) Disclaimers in hospital
admission contracts and constitutional health rights: Cases ESR Review 3(2)17–8; Carstens, PA
and Kok, JA (2003) An assessment of the use of disclaimers against medical negligence by
South African hospitals in view of constitutional demands, foreign law and medico-legal
considerations SA Public Law 18(2):430–55 at 430; Tladi, D (2002) One step forward, two
steps back for constitutionalising the common law: Afrox Health Care v Strydom SA Public
Law 17(2):473–78.
199 (493/2000) [2001] ZASCA 85 (31 August 2001).
200 Ngxuza para 1.
201 Committee on ESCR General Comment No 14 The right to the highest attainable standard of
health para 33.
202 Grootboom para 35.
203 Grootboom para 36.
204 Soobramoney para 11.
205 Soobramoney paras 24–8.
206 Soobramoney para 29.
207 Soobramoney para 36. The application was argued around the s 27(3) right not to be refused
emergency medical treatment and a reading of the right to life in terms of which the state is
required to keep the applicant alive. The Court denied the application in these respects, holding
that because health care rights were explicitly protected in the Constitution, it was unnecessary
to give such an interpretation to the right to life (para 19). Also, s 27(3) did not apply to the
applicant’s case because his was not an emergency situation (para 21). S 27(3) was a right not
to be refused emergency medical treatment arbitrarily where it was available instead of a
positive right to make available emergency medical treatment where it was not (para 20).
Having disposed of these two arguments, the Court on its own initiative proceeded to consider
the claim on the basis of s 27(1) (para 22).
208 Grootboom para 95.
209 Treatment Action Campaign (No 2) para 135.
210 With respect to its evaluation of the guidelines according to which the state made this decision,
the Court applied a stricter reasonableness test. See Soobramoney paras 23–8.
211 See, for comparison, Bel Porto School Governing Body and Others v Premier of the Western
Cape Province and Another (CCT58/00) [2002] ZACC 2; 2002 (3) SA 265; 2002 (9) BCLR
891 (21 February 2002) para 127 where the Court lists factors that could play a role in
determining the strictness of its scrutiny with respect to administrative law reasonableness
review.
212 Whether they are a marginalised or especially vulnerable group. See De Vos (2004) 266.
213 Khosa para 80.
214 In Grootboom, the issues were much less clearly delineated than in either Treatment Action
Campaign (No 2) or Khosa. Also, in Treatment Action Campaign (No 2), many of the complex
issues the Court had to consider, in other words, the safety/efficacy of Nevirapine and the
availability of the necessary infrastructure to provide it properly, had either been determined by
specialised bodies empowered to decide such issues, such as the Medicines Control Council, or
the Court had dispositive evidence at its disposal with which to decide. In both the latter cases,
a stricter standard of scrutiny was applied than in Grootboom.
215 In Khosa, the impugned provisions also breached s 9(3). In applying this section, the Court
used a standard of scrutiny rising to the level of proportionality. It would make little sense to
apply s 27(2) to the same breach using a more lenient standard.
216 Mazibuko paras 83, 84, 89 and 101.
217 Mazibuko para 162.
218 Mazibuko para 168.
219 Grootboom para 41.
220 Grootboom para 41.
221 See Roux (2003) 92 with respect to a similar fiction operating in the context of the Court’s
engagement with resource allocation issues.
222 The Court did manage to soften the prescriptive edge of its finding and order by directing that
Nevirapine be provided only where the attending physician and the superintendent of the
facility in question opined that it was indicated. See Treatment Action Campaign (No 2)
para 135, para 3(b) of the order.
223 Khosa para 98.
224 Mazibuko paras 65–6.
225 Mazibuko para 67.
226 Ss 26(2) and 27(2) of the Constitution are clearly mandatory provisions with respect to this
basic point: ‘the state must take … measures … to achieve the … realisation of these rights’
(our emphasis).
227 Grootboom para 45.
228 Grootboom para 45. Deliberate retrogression breaches the negative duty to respect rights. As
such, it is subject for its justification to s 36(1) rather than to the reasonableness standard that
applies uniquely to the positive duties imposed by qualified rights.
229 Grootboom para 41.
230 Grootboom para 40.
231 Committee on ESCR General Comment 12 The right to adequate food para 25.
232 And, according to the various courts’ remarks in Modderklip Boerdery para 22 and City of
Cape Town v Rudolph 77B–84H is still not comprehensive.
233 See, for example, Committee on ESCR General Comment 12 The right to adequate food
paras 21–30; General Comment 14 The right to the highest attainable standard of health
para 43; General Comment 15 The right to water paras 37 and 46–54.
234 See Committee on ESCR, specifically General Comment 12 The right to adequate food para 29
and General Comment 15 The right to water para 50.
235 Grootboom para 40.
236 Grootboom para 41.
237 The South African government also seems to understand its duty to fulfil socio-economic
rights in this manner. See, for example, the recent adoption by the Department of Agriculture
of the Integrated Food Security Strategy in reaction to criticism from various quarters that no
coherent and comprehensive plan through which to fulfil the right to food existed in South
Africa. The Integrated Food Security Strategy is a framework document seeking to create
institutions through which the fulfilment of the right to food can be co-ordinated. This is
coupled with the Department’s ongoing efforts to enact framework legislation in this respect.
238 Grootboom para 39.
239 See below for a discussion of the court’s approach to scrutinising the state’s budgetary choices.
240 See in this respect also People’s Union for Civil Liberties v Union of India & Ors in the
Supreme Court of India, Civil Original Jurisdiction, Writ Petition, (Civil) No. 196 of 2001.
This Indian case dealt with an application in part directed at obtaining orders that the Indian
 government’s existing measures at national and state level to address food insecurity and
famine be effectively implemented. The complaint alleged, among other things, that although
adequate food reserves existed in India, and although the state had adopted various measures to
address food insecurity and famine, these measures were not implemented. This was in part
because state governments routinely diverted funds from national government, intended to
implement these measures, to other needs. In response, the Indian Supreme Court issued a
number of interim orders requiring, among other things, that funds allocated from national
level to state governments for use in the public distribution of food and famine measures in fact
be used for those purposes.
241 Grootboom para 42.
242 Grootboom para 43.
243 Grootboom para 43.
244 Grootboom para 44.
245 See Roux, T (2002) Understanding Grootboom: A response to Cass R Sunstein Constitutional
Forum 12(2):41–51 at 49.
246 Grootboom para 66.
247 Treatment Action Campaign (No 2) para 67.
248 Treatment Action Campaign (No 2) para 80.
249 Grootboom para 66.
250 Grootboom para 44.
251 Sunstein (2001) 127.
252 Roux (2002) 49.
253 Brand (2004) 50.
254 See Brand (2002b) 108 and Bilchitz, D (2003) 15–17.
255 Khosa para 82.
256 Khosa paras 60–2.
257 Khosa para 80.
258 Treatment Action Campaign (No 2) para 123.
259 Treatment Action Campaign (No 2) para 123.
260 See also Liebenberg (2013) 33.37–33.38.
261 See De Vos, P (2001) Grootboom, the right of access to housing and substantive equality as
contextual fairness South African Journal on Human Rights 17(2):258–76 at 258.
262 Mazibuko paras 40, 67 and 162.
263 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008).
264 Grootboom paras 82–3. See also Port Elizabeth Municipality para 39 where the Court stated:
… the procedural and substantive aspects of justice and equity cannot always be
separated. The managerial role of the courts may need to find expression in
innovative ways. Thus, one potentially dignified and effective mode of achieving
sustainable reconciliations of the different interests involved is to encourage and
require the parties to engage with each other in a proactive and honest endeavour
to find mutually acceptable solutions. Wherever possible, respectful face-to-face
engagement or mediation through a third party should replace arm’s-length
combat by intransigent opponents.
265 Occupiers of 51 Olivia Road para 13.
266 Occupiers of 51 Olivia Road para 114.
267 Occupiers of 51 Olivia Road para 14.
268 Occupiers of 51 Olivia Road para 115.
269 Occupiers of 51 Olivia Road para 15.
270 Grootboom para 82.
271 Occupiers of 51 Olivia Road para 18.
272 Occupiers of 51 Olivia Road para 20.
273 Occupiers of 51 Olivia Road para 21.
274 Ss 26(2) and 27(2) of the Constitution.
275 Liebenberg (2013) 33.44.
276 Grootboom para 46.
277 Soobramoney paras 24–8.
278 Treatment Action Campaign (No 2) para 19. This prompted the Court to hold that the extension
of the programme to these sites ‘will not attract any significant additional costs’ (para 71).
279 That the onus in this respect is indeed on the state rather than on the claimant is most clearly
established in Khosa.
280 Treatment Action Campaign (No 2) para 118.
281 Treatment Action Campaign (No 2) para 119.
282 Treatment Action Campaign (No 2) para 120.
283 Treatment Action Campaign (No 2) para 120.
284 Khosa paras 60–1.
285 The Court’s willingness to do so is not insignificant. See by way of contrast Ncgobo J,
dissenting in Khosa at para 128:
Mr Kruger … estimates that the annual cost of including permanent residents
could range between R243 million and R672 million. Policymakers have the
expertise … to present a … prediction about future social conditions. That is … the
work that policymakers are supposed to do. Unless there is evidence to the contrary,
courts should be slow to reject reasonable estimates made by policymakers.
286 Khosa para 62.
287 Khosa is significant in that it clearly establishes that it is not for the claimant in a socio-
economic rights case to show that the state is not constrained by lack of resources, but for the
state to show that it is so constrained (paras 60–2). Precisely because the state was unable to
make this showing satisfactorily, the Court rejected its objection, seemingly without requiring
the claimants to make a contrary showing (para 62).
288 Khosa para 60.
289 The state estimated that the additional cost would be between R243 million and R672 million.
The wide range itself indicated to the Court the absence of clear evidence as to the possible
resource consequences of a finding of inconsistency (para 62).
290 Khosa para 62.
291 Treatment Action Campaign (No 2) para 38.
292 In Khosa, this is precisely what the Court did. Its finding of unreasonableness forced the state
to expend resources on providing access to social assistance benefits, something for which the
state itself had not budgeted.
293 Roux (2003) 9.
294 Blue Moonlight Properties para 74.
295 Such ‘just and equitable’ orders could include but are not limited to orders limiting the
retrospective effect of an order of invalidity or suspending the operation of an order of
invalidity.
296 Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997
(3) SA 786 (5 June 1997) para 19.
297 Fose para 69.
298 Sabel, CF and Simon, WH (2004) Destabilisation rights: How public law litigation succeeds
Harvard Law Review 117(4):1016–1101 at 1017.
299 See, in this respect, Trengove, W (1999) Judicial remedies for violations of socio-economic
rights ESR Review 1(4):8–11 at 9–10, and, in general, Sabel and Simon (2004).
300 The Constitutional Court used such a structural interdict in August to ensure that the state took
the necessary steps to make it possible for prisoners to vote in general elections. The various
High Courts have made quite regular use of such interdicts in socio-economic rights cases. See,
for example, Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C).
301 Grootboom para 99.
302 Treatment Action Campaign (No 2) para 135.
303 Treatment Action Campaign (No 2) para 129.
304 In a number of recent cases, courts have pointed out that the state has to all intents and
purposes simply ignored the order in Grootboom and has put in place no discernible measures
to take account of the plight of those in housing crises. See, for example, Modderklip para 22
and Rudolph paras 77B–84H. See also Pillay, K (2002) Implementation of Grootboom:
Implications for the enforcement of socio-economic rights Law, Democracy and Development
6(2):255–77.
305 Sabel and Simon (2004) 1017.
306 Fose paras 18–19.
307 It remains an open question, for example, whether or not a structural interdict would indeed
have led to the findings in Grootboom being implemented effectively by the state or whether,
instead, the policy issue in Grootboom was so wide and amorphous and required such wide-
ranging and complex adjustment on the side of the state that the Court would simply have
become bogged down in debilitating detail had it retained jurisdiction.
308 This chapter 16 is a modified and updated version of the author’s ‘Introduction’ in D Brand
and CH Heyns Socio-economic rights in South Africa (2005). To the extent that material from
that chapter is reproduced here, the Pretoria University Law Press (PULP) that published the
original chapter has given its permission.
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Clutchco (Pty) Ltd v Davis (035/04) [2005] ZASCA 16; [2005]
2 All SA 225 (SCA); 2005 (3) SA 486 (SCA) (24 March
2005) 624, 625
Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer Port Elizabeth
Prison and Others (CCT19/94, CCT22/94) [1995] ZACC 7;
1995 (10) BCLR 1382; 1995 (4) SA 631 (22 September
1995) 354, 378, 396, 397, 404
Collins v Minister of the Interior 1957 (1) SA 552 (A) 11
Constitutional Court of the Republic of Latvia, Case No 2000-
08-0109 675
Constitutionality of the Mpumalanga Petitions Bill, 2000 (CCT
11/01) [2001] ZACC 10; 2002 (1) SA 447 (CC); 2001 (11)
BCLR 1126 (5 October 2001) 66, 164
Council of Civil Service Unions and Others v Minister for the
Civil Service [1984] 3 All ER 935 (HL) 609
D
Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC
14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11
March 2004) 209, 339, 340, 396
Dawood and Another v Minister of Home Affairs and Others;
Shalabi and Another v Minister of Home Affairs and
Others; Thomas and Another v Minister of Home Affairs
and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936;
2000 (8) BCLR 837 (7 June 2000) 84, 260, 324, 362, 390,
393, 395, 403, 419, 458, 459, 460, 471, 473
De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC
6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (28 May
1998) (CC) 63, 105, 227, 629
De Lille and Another v Speaker of the National Assembly
1998 (3) SA 430 (C) 90, 118
De Reuck v Director of Public Prosecutions (Witwatersrand
Local Division) and Others (CCT5/03) [2003] ZACC 19;
2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15
October 2003) 222, 349, 357, 359, 376, 534, 535
Democratic Alliance and Another v Masondo NO and
Another (CCT29/02) [2002] ZACC 28; 2003 (2) BCLR 128;
2003 (2) SA 413 (CC) (12 December 2002) 152, 153
Democratic Alliance v eThekwini Municipality (887/2010)
[2011] ZASCA 221; 2012 (2) SA 151 (SCA); [2012] 1 All
SA 412 (SCA) (30 November 2011) 589
Democratic Alliance v President of South Africa and Others
(CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297
(CC); 2013 (1) SA 248 (CC) (5 October 2012) 82, 182,
189, 190, 191, 249, 252, 589, 590, 591, 592
Dikoko v Mokhatla (CCT62/05) [2006] ZACC 10; 2006 (6) SA
235 (CC); 2007 (1) BCLR 1 (CC) (3 August 2006) 116, 117
Doctors for Life International v Speaker of the National
Assembly and Others (CCT12/05) [2006] ZACC 11; 2006
(12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August
2006) 87, 89, 94, 95, 96, 102, 103, 104, 105, 115, 120,
121, 122, 135, 136, 139, 151, 156, 219, 403, 415
Doody v Secretary of State for the Home Department and
other Appeals [1993] 3 All Er 92 (HL) 607
Dormehl v Minister of Justice and Others (CCT10/00) [2000]
ZACC 4; 2000 (2) SA 825; 2000 (5) BCLR 471 (CC) (14
April 2000) 220, 221, 633
Du Plessis and Others v De Klerk and Another (CCT8/95)
[1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15
May 1996) 333, 336, 342, 685
Du Preez and Another v Truth and Reconciliation
Commission 1997 (3) SA 204 (A) 607
Du Toit and Another v Minister of Welfare and Population
Development and Others (CCT40/01) [2002] ZACC 20;
2002 (10) BCLR 1006; 2003 (2) SA 198 (CC) (10
September 2002) 370, 426
Du Toit v Minister of Transport (CCT22/04) [2005] ZACC 9;
2005 (11) BCLR 1053 (CC); 2006 (1) SA 297 (CC) (8
September 2005) 361
E
Eaton v Brant County Board of Education [1997] 1 SCR 241
457
Egan v Canada (1995) 29 CRR (2d) 79 31
Eldridge v British Columbia (Attorney General) 1997 151
DLR (4th) 577 SCC 675
Ellis v Viljoen 2001 (4) SA 795 (C) 691
Engel v Vitale: [1962] USSC 116; 370 US 421 (1962) 431
490
Engelbrecht v Road Accident Fund and Another (CCT57/06)
[2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5) BCLR 457
(CC) (6 March 2007) 365
Everson v Board of Education of the Township of Ewing
[1947] USSC 44; 330 US 1, 15–6 (1947) 487
Ex parte Attorney-General: In Re the Constitutional
Relationship between the Attorney-General and the
Prosecutor-General SA 7/93 [1995] NASC 1; 1995 (8)
BCLR 1070 (Nm5) (13 July 1995) 251
Ex Parte Minister of Safety and Security and Others: In Re S
v Walters and Another (CCT28/01) [2002] ZACC 6; 2002
(4) SA 613; 2002 (7) BCLR 663 (21 May 2002) 354, 355,
357, 359, 373
Ex Parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC
15; 2000 (1) SA 732; 2000 (1) BCLR 1 (11 November
1999) 157, 162, 163, 179, 284, 285, 286, 296
Executive Council of the Province of the Western Cape v
Minister for Provincial Affairs and Constitutional
Development and Another, Executive Council of KwaZulu-
Natal v President of the Republic of South Africa and
Others (CCT15/99,CCT18/99) [1999] ZACC 13; 2000 (1)
SA 661; 1999 (12) BCLR 1360 (15 October 1999) 66, 164,
188
Executive Council of the Western Cape Legislature and
Others v President of the Republic of South Africa and
Others (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289;
1995 (4) SA 877 (22 September 1995) 31, 66, 67, 156,
163, 164, 165, 166, 188, 220, 221, 288, 401, 403, 404,
633
F
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and
Others (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998
(12) BCLR 1458 (14 October 1998) 82, 183, 189, 292
Ferreira v Levin NO and Others; Vryenhoek and Others v
Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996
(1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)
327, 328, 329, 338, 394, 398, 458, 633
First National Bank of SA Limited t/a Wesbank v
Commissioner for the South African Revenue Services
and Another; First National Bank of SA Limited t/a
Wesbank v Minister of Finance (CCT19/01) [2002] ZACC
5; 2002 (4) SA 768; 2002 (7) BCLR 702 (16 May 2002)
353, 354, 383
Forum for Black Journalists v Katy Katopodis Case ref no.:
GP/2008/0161/L BIOS 479, 480, 481
Fose v Minister of Safety and Security (CCT14/96) [1997]
ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (5 June
1997) 393, 394, 395, 400, 409, 410, 411, 721, 722
Francis Coralie Mullin v The Administrator, Union Territory of
Delhi (1981) 2 SCR 516 529 675
Fraser v Children’s Court Pretoria North and Others
(CCT31/96) [1997] ZACC 1; 1996 (8) BCLR 1085; 1997
(2) SA 218 (5 February 1997) (Fraser I) 403
Fraser v Naude and Another (Fraser II) (CCT14/98) [1998]
ZACC 13; 1999 (1) SA 1; 1998 (11) BCLR 1357 (23
September 1998) 390, 395
Freedom Under Law v Acting Chairperson: Judicial Service
Commission and Others (2011 (3) SA 549 (SCA); [2011] 3
All SA 513 (SCA)) [2011] ZASCA 59; 52/2011 (31 March
2011) 242, 243
G
Gauteng Provincial Legislature In re: Gauteng School
Education Bill of 1995 (CCT39/95) [1996] ZACC 4; 1996
(4) BCLR 537; 1996 (3) SA 165 (4 April 1996) 519
Gauteng Provincial Legislature v Killian and 29 Others
[562/98] [2000] ZASCA 75; 2001 (2) SA 68 (SCA); [2001]
1 All SA 463 (A) (29 Nov 2000) 133
Geldenhuys v Minister of Safety and Security and Another
2002 (4) SA 719 (C) 728 G–I 59
Geldenhuys v National Director of Public Prosecutions and
Others (CCT 26/08) [2008] ZACC 21; 2009 (2) SA 310
(CC); 2009 (1) SACR 231 (CC); 2009 (5) BCLR 435 (CC)
(26 November 2008) 383
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and
Others (CCT 25/12) [2012] ZACC 28; 2013 (3) BCLR 251
(CC) (29 November 2012) 327, 328
Githunguri v Republic of Kenya [1986] LRC (Const) 618 (HC)
251
Glenister v President of the Republic of South Africa and
Others (Glenister I) (CCT 41/08) [2008] ZACC 19; 2009 (1)
SA 287 (CC); 2009 (2) BCLR 136 (CC) (22 October 2008)
102, 104
Glenister v President of the Republic of South Africa and
Others (Glenister II) (CCT 48/10) [2011] ZACC 6; 2011 (3)
SA 347 (CC); 2011 (7) BCLR 651 (CC) (17 March 2011)
102
Goldberg v Kelly 397 US 254 (1970) 675
Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20;
2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC) (23
November 2006) 426
Governing Body of the Juma Musjid Primary School & Others
v Essay NO and Others (CCT 29/10) [2011] ZACC 13;
 2011 (8) BCLR 761 (CC) (11 April 2011) 337, 338
Governing Body of the Rivonia Primary School and Another v
MEC for Education: Gauteng Province and Others
(11/08340) [2011] ZAGPJHC 182; [2012] 1 All SA 576
(GSJ); 2012 (5) BCLR 537 (GSJ) (7 December 2011) 520
Governing Body of the Rivonia Primary School and Another v
MEC for Education: Gauteng Province and Others
(161/12) [2012] ZASCA 194; 2013 (1) SA 632 (SCA);
[2013] 1 All SA 633 (SCA) (30 November 2012) 520
Government of the Republic of South Africa and Others v
Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001
(1) SA 46; 2000 (11) BCLR 1169 (4 October 2000) 428,
457, 459, 672, 673, 675, 682, 688, 689, 692, 693, 694,
695, 702, 708, 709, 710, 711, 712, 713, 714, 715, 717,
718, 719, 721, 722
Government of the Republic of South Africa v Sunday Times
Newspaper and Another 1995 (2) SA 221 (T) 227H–228A
536, 537
Graham v Ridley 1931 TPD 476 690
Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of
Public Works and Others [2005] ZASCA 43; 2005 (6) SA
313 (SCA) 596
Grootboom v Oostenberg Municipality and Others 2000 (3)
BCLR 277 (C) 722
Growthpoint Properties Ltd v South Africa Commercial
Catering and Allied Workers Union (SACCAWU) and
Others (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR
81 (KZD); [2011] 1 All SA 537 (KZD); (2010) 31 ILJ 2539
(KZD) (3 September 2010) 554, 555
Gumede (born Shange) v President of the Republic of South
Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3)
 BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December
2008) 345, 502, 515
Gundwana v Steko Development CC and Others (CCT
44/10) [2011] ZACC 14; 2011 (3) SA 608 (CC); 2011 (8)
BCLR 792 (CC) (11 April 2011) 699
H
Hamata and Another v Chairman, Peninsula Technikon
Internal Disciplinary Committee and Others 2000 (4) SA
621 (C) 532
Hamata and Another v Chairperson, Peninsula Technikon
Internal Disciplinary Committee and Others (1) (384/2000)
[2002] ZASCA 44 (17 May 2002) 612
Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12;
1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997)
353, 382, 423, 426, 427, 432, 444, 445, 446, 450, 454
Harris and Others v Minister of the Interior and Another 1952
(2) SA 428 (A) 11, 40
Head of Department : Mpumalanga Department of Education
and Another v Hoërskool Ermelo and Another (CCT40/09)
[2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR
177 (CC) (14 October 2009) 517, 518, 520, 521, 522, 523
Hira and Another v Booysens and Another 1992 (4) SA 69
(A) 70E 603
Hoërskool Ermelo and Another v Head of Department of
Education: Mpumalanga and Others (219/2008) [2009]
ZASCA 22; 2009 (3) SA 422 (SCA); [2009] 3 All SA 386
(SCA) (27 March 2009) 521
Hoffmann v South African Airways (CCT17/00) [2000] ZACC
17; 2001 (1) SA 1; 2000 (11) BCLR 1235; [2000] 12 BLLR
1365 (CC) (28 September 2000) 423, 426, 446, 447, 450,
476
Hofmeyr v Minister of Justice and Another 1992 (3) SA 108
(C) 177
Holomisa v Argus Newspaper 1996 (2) SA 588 (W) 539
Hurley v Irish- American Gay, Lesbian and Bisexual Group of
Boston 515 US 557 (1995) 475
I
In re: KwaZulu-Natal Amakhosi and Iziphakanyiswa
Amendment Bill of 1995, In re: Payment of Salaries.
Allowances and Other Privileges to the Ingonyama Bill of
1995 (CCT1/96, CCT6/96) [1996] ZACC 15; 1996 (7)
BCLR 903; 1996 (4) SA 653 (5 July 1996) 157, 288
Independent Electoral Commission v Langeberg Municipality
(CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001
(9) BCLR 883 (CC) (7 June 2001) 127, 259, 260, 261, 274,
275, 595, 597
Independent Newspapers (Pty) Ltd v Minister for Intelligence
Services (Freedom of Expression Institute as Amicus
Curiae) In re: Masetlha v President of the Republic of
South Africa and Another (CCT38/07) [2008] ZACC 6;
2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May
2008) 386, 540, 541
Ingledew v Financial Services Board (CCT6/02) [2003] ZACC
8; 2003 (8) BCLR 825; 2003 (4) SA 584 (CC) (13 May
2003) 361
Ingonyama Trust v eThekwini Municipality (149/2011) [2012]
ZASCA 104; 2013 (1) SA 564 (SCA) (1 June 2012) 305,
306
Institute for Democracy in South Africa and Others v African
National Congress and Others (9828/03) [2005] ZAWCHC
30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C) (20 April
2005) 477, 478, 566, 567
International Trade Administration Commission v SCAW
South Africa (Pty) Ltd (CCT 59/09) [2010] ZACC 6; 2012
(4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March 2010)
204
Investigating Directorate: Serious Economic Offences and
Others v Hyundai Motor Distributors (Pty) Ltd and Others
In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000
(10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000)
27, 214, 339, 340, 395, 396, 463, 464
Islamic Unity Convention v Independent Broadcasting
Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4)
SA 294; 2002 (5) BCLR 433 (11 April 2002) 222, 359, 370,
375, 377, 378, 398, 528, 529, 532, 533, 544
Ismail v Ismail 1983 (1) SA 1006 (A) 1026 485, 501
Ismail v New National Party in the Western Cape and Others
(2001) JOL 8206 (C) 586
J
J and Another v Director General, Department of Home
Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5)
BCLR 463; 2003 (5) SA 621 (CC) (28 March 2003) 370,
394, 403, 426
Jaftha v Schoeman and Others, Van Rooyen v Stoltz and
Others (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140
(CC); 2005 (1) BCLR 78 (CC) (8 October 2004) 370, 673,
686, 693, 695, 699, 706
Janse van Rensburg and Another v Minister of Trade and
Industry and Another (CCT13/99) [2000] ZACC 18; 2001
(1) SA 29; 2000 (11) BCLR 1235 (CC) (29 September
2000) 84
Johannesburg City Council v The Administrator, Transvaal
and Mayofis 1971 (1) SA 87 (A) 604
Johannesburg Stock Exchange and Another v Witwatersrand
Nigel Ltd and Another 1988 (3) SA 132 (A) 152A–D 604
Johncom Media Investments Limited v M and Others (CCT
08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR
751 (CC) (17 March 2009) 370, 374, 382, 539, 541, 542
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of
Labour intervening) (CCT15/98) [1998] ZACC 18; 1999 (2)
SA 1; 1999 (2) BCLR 139 (27 November 1998) 432, 441
Joseph and Others v City of Johannesburg and Others (CCT
43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010
(4) SA 55 (CC) (9 October 2009) 291, 596, 597, 598, 599,
609, 612, 670
JT Publishing (Pty) Ltd and Another v Minister of Safety and
Security and Others (CCT49/95) [1996] ZACC 23; 1996
(12) BCLR 1599; 1997 (3) SA 514 (21 November 1996)
407
Judicial Service Commission and Another v Cape Bar
Council and Another (818/2011) [2012] ZASCA 115; 2012
(11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1
All SA 40 (SCA) (14 September 2012) 235, 236
Justice Alliance of South Africa v President of Republic of
South Africa and Others, Freedom Under Law v President
of Republic of South Africa and Others, Centre for Applied
Legal Studies and Another v President of Republic of
South Africa and Others (CCT 53/11, CCT 54/11, CCT
62/11) [2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10)
BCLR 1017 (CC) (29 July 2011) 66, 67, 164, 165, 166,
167, 188, 189, 210, 239, 240, 241
K
K v Minister of Safety and Security (CCT52/04) [2005] ZACC
8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005]
8 BLLR 749 (CC) (13 June 2005) 214, 342, 344
Kaunda and Others v President of the Republic of South
Africa (CCT 23/04) [2004] ZACC 5; 2005 (4) SA 235 (CC);
2004 (10) BCLR 1009 (CC) (4 August 2004) 586
Khosa and Others v Minister of Social Development and
Others, Mahlaule and Another v Minister of Social
Development (CCT 13/03, CCT 12/03) [2004] ZACC 11;
2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March
2004) 121, 324, 400, 428, 450, 669, 673, 685, 686, 694,
703, 704, 709, 710, 711, 715, 716, 719, 720
Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC
12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002)
331, 332, 333, 337, 419, 532, 536, 537, 685
Kruger v President of the Republic of South Africa and
Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417
(CC); 2009 (3) BCLR 268 (CC) (2 October 2008) 190, 327,
328
Kutumela v Member of the Executive Committee for Social
Services, Culture, Arts and Sport in the North West
Province Case 671/2003 23 October 2003 (B) 680, 713,
714
Kylie v Commission for Conciliation, Mediation and
Arbitration 2010 (4) SA 383 (LAC) 640, 641
L
Larbi-Odam and Others v Member of the Executive Council
for Education (North-West Province) and Another
(CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998
(1) SA 745 (26 November 1997) 361, 383, 426, 447
Laugh It Off Promotions CC v South African Breweries
International (Finance) BV t/a Sabmark International and
Another (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144
(CC); 2005 (8) BCLR 743 (CC) (27 May 2005) 374, 533
Law v Canada (Minister of Employment and Immigration) 1
SCR 497 (1999) 457
Lawyers for Human Rights and Other v Minister of Home
Affairs and Other (CCT 18/03) [2004] ZACC 12; 2004 (4)
SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004)
324, 329, 399
Le Roux and Others v Dey (44/2009) [2010] ZASCA 41;
2010 (4) SA 210 (SCA); [2010] 3 All SA 497 (SCA) (30
March 2010) 547
Le Sueur and Another v Ethekwini Municipality and Others
(9714/11) [2013] ZAKZPHC 6 (30 January 2013) 299, 300
Lesapo v North West Agricultural Bank and Another
(CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12)
BCLR 1420 (16 November 1999) 83, 84, 371, 629, 632,
633
Liberal Party v The Electoral Commission and Others (CCT
10/04) [2004] ZACC 1; 2004 (8) BCLR 810 (CC) (5 April
2004) 564
Lingwood and Another v The Unlawful Occupiers of R/E of
Erf 9 Highlands 2008 (3) BCLR 325 (W) 413
Lloyd v Mcmahon [1987] AC 625 607
Lovelace v Canada CCPR/C/13/D/24/1977 511, 513
Luitingh v Minister of Defence (CCT29/95) [1996] ZACC 5;
1996 (4) BCLR 581; 1996 (2) SA 909 (4 April 1996) 220,
221
Lyng v Northwest Indian Cemetery 485 US 439 492
M
Maccsand (Pty) Ltd v City of Cape Town and Others
(CCT103/11) (CC) [2012] ZACC 7; 2012 (4) SA 181 (CC);
2012 (7) BCLR 690 (CC) (12 April 2012) 296
Mackey v US 401 US 667 (1971) 401
Magajane v Chairperson, North West Gambling Board
(CCT49/05) [2006] ZACC 8; 2006 (10) BCLR 1133 (CC);
2006 (5) SA 250; 2006 (2) SACR 447 (8 June 2006) 359,
364, 370
Magidimisi v Premier of the Eastern Cape and Others
(2180/04, ECJ031/06) [2006] ZAECHC 20 (25 April 2006)
197
Magidiwana and Another v President of the Republic of
South Africa and Others (37904/2013) [2013] ZAGPPHC
292 (14 October 2013) 632, 633, 634
Mandla and Another v Dowell Lee and Another [1983] 1 All
ER 1062 (HL) 508
Marbury v Madison 5 US (1 Cranch) 137 (1803) 47, 48
Masetlha v President of the Republic of South Africa and
Another (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566
(CC); 2008 (1) BCLR 1 (3 October 2007) 184, 185, 187,
189, 195, 457, 590, 592
Mashavha v President of the Republic of South Africa and
Others (CCT 67/03) [2004] ZACC 6; 2005 (2) SA 476
(CC); 2004 (12) BCLR 1243 (CC) (6 September 2004)
289, 704
Masiya v Director of Public Prosecutions Pretoria (The State)
and Another (CCT54/06) [2007] ZACC 9; 2007 (5) SA 30
(CC); 2007 (8) BCLR 827 (10 May 2007) 214, 223
Matatiele Municipality and Others v President of the Republic
of South Africa and Others (1) (CCT73/05) [2006] ZACC 2;
2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC) (27
February 2006) 120, 293
Matatiele Municipality and Others v President of the Republic
of South Africa and Others (2) (CCT73/05A) [2006] ZACC
12; 2007 (1) BCLR 47 (CC) (18 August 2006) 120
May v Udwin 1981 (1) SA 1 (A) 244
Mayelane v Ngwenyama and Another (CCT 57/12) [2013]
ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC)
(30 May 2013) 344, 345, 502, 503
Mazibuko and Others v City of Johannesburg and Others
(CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC);
2010 (4) SA 1 (CC) (8 October 2009) 681, 709, 710, 711,
712, 716
Mazibuko Leader of the Opposition in the National Assembly
v Sisulu Speaker of the National Assembly and Others
(21990/2012) [2012] ZAWCHC 189; 2013 (4) SA 243
(WCC) (22 November 2012) 631
Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC
28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27
August 2013) 104, 113, 116, 145, 146, 174
MEC: Department of Agriculture, Conservation and
Environment and Another v HTF Developers (Pty) Limited
(CCT 32/07) [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008
(4) BCLR 417 (CC) (6 December 2007) 385
MEC for Education: Kwazulu-Natal and Others v Pillay (CCT
51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2)
BCLR 99 (CC) (5 October 2007) 215, 378, 379, 384, 430,
452, 453, 454, 455, 456, 457, 469, 470, 495, 496, 508
Merafong Demarcation Forum and Others v President of the
Republic of South Africa and Others (CCT 41/07) [2008]
ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968
(CC) (13 June 2008) 88, 120, 140, 141
Mhlekwa & Feni v Head of the Western Tembuland Regional
Authority 2000 (9) BCLR 979 (Tk) 1017–18 249
Midi Television (Pty) Ltd v Director of Public Prosecutions
(Western Cape) (100/06) [2007] ZASCA 56; [2007] SCA
56 (RSA); [2007] 3 All SA 318 (SCA) (18 May 2007) 480,
481, 539
Millennium Waste Management (Pty) Ltd. v Chairperson of
the Tender Board: Limpopo Province and Others (31/2007)
[2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All
SA 145; 2008 (2) SA 481; 2008 (5) BCLR 508; 2008 (2)
SA 481 (SCA) (29 November 2007) 311, 312
Minister for Justice and Constitutional Development v
Chonco and Others (CCT 42/09) [2009] ZACC 25; 2010
(1) SACR 325 (CC); 2010 (2) BCLR 140 (CC); 2010 (4) SA
82 (CC) (30 September 2009) 189
Minister of Education (Western Cape) v Mikro Primary
School Governing Body (140/2005) [2005] ZASCA 66;
[2005] 3 All SA 436 (SCA) (27 June 2005) 520, 521, 522
Minister of Environmental Affairs and Tourism and Others v
Phambili Fisheries (Pty) Ltd and Another (32/2003,
40/2003) [2003] ZASCA 46; [2003] 2 All SA 616 (SCA) (16
May 2003) 618
Minister of Finance and Other v Van Heerden (CCT 63/03)
[2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR
1125 (CC); [2004] 12 BLLR 1181 (CC) (29 July 2004) 29,
422, 423, 428, 429, 430, 433, 434, 435, 438, 439, 440,
441, 442
Minister of Health and Another v New Clicks South Africa
(Pty) Ltd and Others (CCT 59/2004) [2005] ZACC 14;
2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC) (30
September 2005) 452, 585, 621
Minister of Health and Others v Treatment Action Campaign
and Others (No 2) (CCT8/02) [2002] ZACC 15; 2002 (5)
SA 721; 2002 (10) BCLR 1033 (5 July 2002) 72, 104, 459,
 550, 551, 673, 684, 686, 689, 692, 694, 695, 696, 697,
703, 709, 710, 711, 714, 715, 716, 719, 720, 722
Minister of Home Affairs and Another v Fourie and Another
(CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC);
2006 (1) SA 524 (CC) (1 December 2005) 370, 395, 396,
404, 405, 406, 426, 448, 459, 483, 485, 486, 487, 502
Minister of Home Affairs v Eisenberg & Associates In re:
Eisenberg & Associates v Minister of Home Affairs and
Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838;
2003 (5) SA 281 (CC) (27 June 2003) 327
Minister of Home Affairs v Liebenberg (CCT22/01) [2001]
ZACC 3; 2001 (11) BCLR 1168; 2002 (1) SA 33 (CC) (8
October 2001) 193
Minister of Home Affairs v National Institute for Crime
Prevention and the Re-Integration of Offenders (NICRO)
and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280
(CC); 2004 (5) BCLR 445 (CC) (3 March 2004) 91, 128,
129, 380, 381, 561, 568, 571, 574, 575, 674
Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997]
ZACC 7; 1997 (6) BCLR 677; 1997 (3) SA 772 (5 June
1997) 220, 221, 404
Minister of Public Works and Others v Kyalami Ridge
Environmental Association and Others (Mukhwevho
Intervening) (CCT 55/00) [2001] ZACC 19; 2001 (3) SA
1151 (CC); 2001 (7) BCLR 652 (CC) (29 May 2001) 684,
705
Minister of Social Development and Others v Phoenix Cash
& Carry Pmb CC (189/06, 244/06) [2007] ZASCA 26;
[2007] SCA 26 (RSA); [2007] 3 All SA 115 (SCA) (27
March 2007) 312, 313
Mistry v Interim National Medical and Dental Council and
Others (CCT13/97) [1998] ZACC 10; 1998 (4) SA 1127;
 1998 (7) BCLR 880 (29 May 1998) 356
Mkontwana v Nelson Mandela Metropolitan Municipality
(CCT 57/03) [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005
(2) BCLR 150 (CC) (6 October 2004) 27
Mnquma Local Municipality and Another v Premier of the
Eastern Cape and Others (231/2009) [2009] ZAECBHC 14
(5 August 2009) 302
Modderfontein Squatters, Greater Benoni City Council v
Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, amici curiae); President of the Republic
of South Africa and Others v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, amici curiae)
2004 (6) SA 40 (SCA) 693, 701, 702
Moise v Greater Germiston Transitional Local Council (CCT
54/00) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8)
BCLR 765 (CC) (4 July 2001) 370, 380
Moseneke and Others v Master of the High Court
(CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001
(2) SA 18 (6 December 2000) 220, 221, 247, 426
Mphele v Government of the Republic of South Africa 1996
(7) BCLR 921 (CK) 954E 195
Mthembi-Mahanyele v Mail & Guardian Ltd and Another
(054/2003) [2004] ZASCA 67; [2004] 3 All SA 511 (SCA) (2
August 2004) 532
Multani v Commission Scolaire Marguerite – Bourgeoys
[2006] 1 SCR 256 499
N
NAACP v Alabama 357 U.S. 449 (1958) 474
National Coalition for Gay and Lesbian Equality and Another
v Minister of Justice and Others (CCT11/98) [1998] ZACC
15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
 29, 338, 370, 374, 376, 381, 400, 402, 419, 422, 426, 430,
444, 451, 459, 462, 464, 465, 471, 483
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others (CCT10/99) [1999]
ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December
1999) 396, 398, 399, 400, 451
National Director of Public Prosecutions v Mohamed NO and
Others (CCT44/02) [2003] ZACC 4; 2003 (1) SACR 561;
2003 (5) BCLR 476; 2003 (4) SA 1 (CC) (3 April 2003) 406
National Director of Public Prosecutions v Zuma (573/08)
[2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243
(SCA) (12 January 2009) 251, 251, 252, 630
National Education Health & Allied Workers Union
(NEHAWU) v University of Cape Town and Others
(CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3)
SA 1 (CC) (6 December 2002) 215, 384, 637, 645
National Gambling Board v Premier of KwaZulu-Natal and
Others (CCT32/01) [2001] ZACC 8; 2002 (2) BCLR 156;
2002 (2) SA 715 (21 December 2001) 220, 221, 223
National Transport Commission and Another v Chetty’s
Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) 604
National Union of Metal Workers of South Africa and Others
v Bader Bop (Pty) Ltd and Another (CCT14/02) [2002]
ZACC 30; 2003 (2) BCLR 182; 2003 (3) SA 513 (CC);
[2003] 2 BLLR 103 (CC) (13 December 2002) 636, 651,
652
Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA
113 (SCA) 690, 691
New National Party v Government of the Republic of South
Africa and Others (CCT9/99) [1999] ZACC 5; 1999 (3) SA
191; 1999 (5) BCLR 489 (13 April 1999) 91, 127, 128, 259,
 261, 262, 358, 561, 567, 568, 569, 570, 571, 572, 573,
576
Ngewu and Another v Post Office Retirement Fund and
Others (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR 421
(CC) (7 March 2013) 432
Nino Bonino v De Lange 1906 TS 120 633
Nokotyana and Others v Ekurhuleni Metropolitan Municipality
and Others (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR
312 (CC) (19 November 2009) 430, 683
Nyathi v Member of the Executive Council for the
Department of Health Gauteng and Another (CCT 19/07)
[2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9) BCLR 865
(CC) (2 June 2008) 633
O
Occupiers of 51 Olivia Road, Berea Township and 197 Main
Street Johannesburg v City of Johannesburg and Others
(24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5)
BCLR 475 (CC) (19 February 2008) 408, 413, 414, 460,
717, 718
Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National
Assembly (CCT 16/12) [2012] ZACC 27; 2012 (6) SA 588
(CC); 2013 (1) BCLR 14 (CC) (9 October 2012) 113, 152,
153, 154
P
Paschim Banga Khet Mazdoor Samity and Others v State of
West Bengal and Another (1996) AIR SC 2426 675
Penrice v Dickenson 1945 AD 6 244
People’s Union for Civil Liberties v Union of India & Ors 714
Pepcor Retirement Fund v Financial Services Board 2003 (6)
SA 38 (SCA) 603
Permanent Secretary Department of Welfare, Eastern Cape
Provincial Government and Another v Ngxuza and Others
(493/2000) [2001] ZASCA 85 (31 August 2001) 707
Pharmaceutical Manufacturers Association of South Africa
and Another: In re Ex parte President of the Republic of
South Africa and Others (CCT31/99) [2000] ZACC 1; 2000
(2) SA 674; 2000 (3) BCLR 241 (25 February 2000) 55,
56, 82, 83, 190, 191, 214, 582, 584, 603
Phillips and Another v Director of Public Prosecutions and
Others (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345; 2003
(4) BCLR 357 (11 March 2003) 381, 382, 532
Pilane and Another v Pilane and Another (CCT 46/12) [2013]
ZACC 3; 2013 (4) BCLR 431 (CC) (28 February 2013) 100
Port Elizabeth Municipality v Various Occupiers (CCT 53/03)
[2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR
1268 (CC) (1 October 2004) 413, 682, 690, 693, 700, 701,
702, 703
Potgieter v Lid van die Uitvoerende Raad: Gesondheid
Provinsiale Regering Gauteng en Andere (CCT 26/01)
[2001] ZACC 4; 2001 (11) BCLR 1175 (8 October 2001)
377
Premier: Limpopo Province v Speaker of the Limpopo
Provincial Legislature and Others (CCT 94/10) [2011]
ZACC 25; 2011 (11) BCLR 1181 (CC); 2011 (6) SA 396
(CC) (11 August 2011) 280, 281, 282, 283, 288, 308
Premier of KwaZulu-Natal and Others v President of the
Republic of South Africa and Others (CCT36/95) [1995]
ZACC 10; 1995 (12) BCLR 1561; 1996 (1) SA 769 (29
November 1995) 219
Premier of the Western Cape and Others v Overberg District
Municipality and Others (801/201) [2011] ZASCA 23; 2011
 (4) SA 441 (SCA); [2011] 3 All SA 385 (SCA) (18 March
2011) 302
Premier, Province of Mpumalanga and Another v Executive
Committee of the Association of Governing Bodies of State
Aided Schools: Eastern Transvaal (CCT10/98) [1998]
ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2
December 1998) 185, 596, 606, 608, 609, 612
President of the Republic of South Africa and Another v
Hugo (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708;
1997 (4) SA 1 (18 April 1997) 31, 177, 178, 183, 184, 189,
361, 362, 382, 423, 426, 427, 694
President of the Republic of South Africa and Another v
Modderklip Boerdery (Pty) Ltd (CCT20/04) [2005] ZACC 5;
2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May
2005) 411, 412, 701, 713, 722
President of the Republic of South Africa and Others v M & G
Media Ltd (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR
181 (CC); 2012 (2) SA 50 (CC) (29 November 2011) 185,
620, 623, 627, 628, 629
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others (SARFU I)
(CCT16/98) [1998] ZACC 21; 1999 (2) SA 14; 1999 (2)
BCLR 175 (2 December 1998) 219
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others (SARFU II)
(CCT16/98) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7)
BCLR 725 (4 June 1999) 172, 197, 227, 630
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others (SARFU III)
(CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10)
BCLR 1059 (10 September 1999) 82, 177, 178, 183, 186,
187, 189, 193, 194, 198, 587, 588, 601
Prince v President of the Law Society of the Cape of Good
Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002
(3) BCLR 231 (25 January 2002) 348, 364, 365, 370, 372,
376, 379, 489, 492, 493, 497, 498
Prinsloo v Van der Linde and Another (CCT4/96) [1997]
ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April
1997) 31, 190, 382, 423, 425, 427, 430, 431, 432, 440,
444
Print Media South Africa and Another v Minister of Home
Affairs and Another (CCT 113/11) [2012] ZACC 22; 2012
(6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28
September 2012) 536, 542, 543, 544
Proulx v Quebec (Attorney-General) 2001 SCC 66, [2001] 3
SCR 9 251
R
R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 31
R v Genereux (1992) 88 DLR (4th) 110 (SCC) 638
R v Oakes [1986] 1 SCR 103 350, 352, 363, 364, 365, 386
R v Paty (Case of the Men of Aylesbury) (1704) 2 Lord Raym
1105, 91 ER 817 117
Rail Commuters Action Group v Transnet Ltd t/a Metrorail
(CCT 56/03) [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005
(4) BCLR 301 (CC) (26 November 2004) 406
Ramakatsa and Others v Magashule and Others (CCT
109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18
December 2012) 110, 124, 478, 561, 562, 563, 630
Residents of Bon Vista Mansions v Southern Metropolitan
Council 2002 (6) BCLR 625 (W) 682
Residents of Joe Slovo Community, Western Cape v
Thubelisha Homes and Others (CCT 22/08) [2009] ZACC
 16; 2009 (9) BCLR 847 (CC); 2010 (3) SA 454 (CC) (10
June 2009) 408, 413
Richter v The Minister for Home Affairs and Others
(CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615
(CC); 2009 (5) BCLR 448 (CC) (12 March 2009) 91, 129,
130, 561, 568, 570, 574, 575, 576
Rights of sick persons/AIDS patients, Constitutional Court of
Columbia, Judgment No T-505/92, 22 August 1992 675
Roberts v United States Jaycees 468 US 609 (1984) 620
473, 474
Ross v South Peninsula Municipality 2000 (1) SA 589 (C)
691
Royal Society for the Prevention of Cruelty to Animals
(RSPCA) v Attorney-General [2002] 1 WLR 448 474, 475
S
S and Others v Van Rooyen and Others (General Council of
the Bar of South Africa Intervening) (CCT21/01) [2002]
ZACC 8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June
2002) 84, 224, 227, 228, 229, 245, 246, 247, 259, 394
S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR
1588; 1997 (2) SA 887 (18 November 1996) 220, 338
S v Bhulwana, S v Gwadiso (CCT12/95, CCT11/95) [1995]
ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579 (29
November 1995) 365, 370, 371, 373, 375, 390, 396, 401,
402, 404
S v Boesak (105/99) [2000] ZASCA 24 (12 May 2000) 216
S v Boesak (CCT25/00) [2000] ZACC 25; 2001 (1) BCLR 36;
2001 (1) SA 912 (1 December 2000) 214, 215, 216, 217
S v Coetzee and Others (CCT50/95) [1997] ZACC 2; 1997
(4) BCLR 437; 1997 (3) SA 527 (6 March 1997) 373
S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382
(CC); 2001 (5) BCLR 423 (CC) (5 April 2001) 63, 105, 371,
586
S v Jordan and Others (Sex Workers Education and
Advocacy Task Force and Others as Amici Curiae
(CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11)
BCLR 1117 (9 October 2002) 356, 359, 360, 369, 370,
374, 375, 448, 449, 463, 464, 641
S v Julies (CCT7/96) [1996] ZACC 14; 1996 (7) BCLR 899;
1996 (4) SA 313 (11 June 1996) 373
S v Lawrence, S v Negal; S v Solberg (CCT38/96,
CCT39/96, CCT40/96) [1997] ZACC 11; 1997 (10) BCLR
1348; 1997 (4) SA 1176 (6 October 1997) 485, 487, 488,
489, 490, 491, 499, 500, 524
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3;
1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD
164; 1995 (2) SACR 1 (6 June 1995) 27, 29, 30, 31, 39,
40, 72, 74, 75, 101, 102, 206, 226, 349, 350, 351, 352,
354, 357, 363, 365, 366, 367, 368, 370, 372, 374, 380,
386, 407, 419, 457
S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA
409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001) 55,
203, 374, 528, 529, 530
S v Manamela and Another (Director-General of Justice
Intervening) (CCT25/99) [2000] ZACC 5; 2000 (3) SA 1;
2000 (5) BCLR 491 (14 April 2000) 375, 399
S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996]
ZACC 1; 1996 (3) BCLR 293; 1996 (2) SA 464 (9 February
1996) 220, 221, 373, 404, 633
S v Mello (CCT5/98) [1998] ZACC 7; 1998 (3) SA 712; 1998
(7) BCLR 908 (28 May 1998) 373
S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995
(3) SA 867; 1995 (7) BCLR 793 (CC) (8 June 1995) 338,
348
S v Ntsele (CCT25/97) [1997] ZACC 14; 1997 (11) BCLR
1543 (14 October 1997) 373, 401
S v Ntuli (CCT17/95) [1995] ZACC 14; 1996 (1) BCLR 141;
1996 (1) SA 1207 (8 December 1995) 432
S v Shinga (Society of Advocates (Pietermaritzburg)) as
Amicus Curiae), S v O’Connell and Others (CCT56/06,
CCT80/06) [2007] ZACC 3; 2007 (5) BCLR 474 (CC);
2007 (2) SACR 28 (CC) (8 March 2007) 540
S v Singo (CCT49/01) [2002] ZACC 10; 2002 (4) SA 858;
2002 (8) BCLR 793 (12 June 2002) 373
S v Steyn (CCT19/00) [2000] ZACC 24; 2001 (1) BCLR 52;
2001 (1) SA 1146; 2001 (1) SACR 16 (29 November 2000)
381
S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995
(3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995) 354,
358, 373, 375, 457
S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2)
SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568;
[1996] 2 CHRLD 244 (5 April 1995) para 17 4, 31, 220,
221, 226, 354, 373, 401, 633, 695
Sachs v Minister of Justice; Diamond v Minister of Justice
1934 AD 11 12, 13
Sailing Queen Investments v The Occupants La Colleen
Court 2008 (6) BCLR 666 (W) 413
Sanderson v Attorney-General, Eastern Cape (CCT10/97)
[1997] ZACC 18; 1997 (12) BCLR 1675; 1998 (2) SA 38 (2
December 1997) 420
Satchwell v President of the Republic of South Africa and
Another (CCT48/02) [2003] ZACC 2; 2003 (4) SA 266
 (CC); 2004 (1) BCLR 1 (CC) (17 March 2003) 370, 426
Sauve v Canada (Chief Electoral Officer) 2002 SCC 68 575
Schachter v Canada (1992) 93 DLR (4th) 1 399
Schubart Park Residents’ Association and Others v City of
Tshwane Metropolitan Municipality and Another (CCT
23/12) [2012] ZACC 26; 2013 (1) SA 323 (CC); 2013 (1)
BCLR 68 (CC) (9 October 2012) 408
Seedat’s Executors v The Master (Natal) 1917 AD 302 485
Shabalala and Others v Attorney-General of the Transvaal
and Another (CCT23/94) [1995] ZACC 12; 1995 (12)
BCLR 1593; 1996 (1) SA 725 (29 November 1995) 529
Shilubana and Others v Nwamitwa (CCT 03/07) [2008]
ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4
June 2008) 208
Sibiya and Others v Director of Public Prosecutions:
Johannesburg High Court and Others (Sibiya I)
(CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005
(8) BCLR 812 (CC); 2006 (1) SACR 220 (CC); [2005] JOL
14514 (CC) (25 May 2005) 407
Sibiya and Others v Director of Public Prosecutions:
Johannesburg High Court and Others (Sibiya II) (CCT
45/04) [2005] ZACC 16; 2006 (2) BCLR 293 (CC); [2005]
JOL 15699 (CC) (7 October 2005) 409
Sibiya and Others v Director of Public Prosecutions (Sibiya
III) (CCT45/04B) [2006] ZACC 22; 2006 (2) BCLR 293
(CC) (30 November 2006) 409
Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR
1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC);
2008 (2) BCLR 158 (CC) (5 October 2007) 645, 646
Sniadach v Family Finance Corp 395 US 337 (1969) 675
Social and Economic Rights Action Centre (SERAC) and the
Centre for Economic and Social Rights (CESR) v Nigeria
Communication 155/96 (October 2001) 676
Sonderup v Tondelli and Another (CCT53/00) [2000] ZACC
26; 2001 (2) BCLR 152; 2001 (1) SA 1171 (4 December
2000) 361
Sonke Gender Justice Network v Malema (2010 (7) BCLR
729 (EqC)) [2010] ZAEQC 2; 02/2009 (15 March 2010)
546
Soobramoney v Minister of Health (Kwazulu-Natal)
(CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997
(12) BCLR 1696 (27 November 199 27, 33, 666, 669, 670,
675, 688, 694, 699, 703, 708, 709, 710, 718, 719
South African Association of Personal Injury Lawyers v
Heath and Others (CCT27/00) [2000] ZACC 22; 2001 (1)
SA 883; 2001 (1) BCLR 77 (28 November 2000) 63, 70,
103
South African Broadcasting Corporation Limited v National
Director of Public Prosecutions and Others (CCT58/06)
[2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR
167 (CC); [2006] JOL 18339 (CC) (21 September 2006)
356, 385, 386, 536, 539, 540
South African National Defence Union v Minister of Defence
(CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6)
BCLR 615 (26 May 1999) 324, 354, 357, 370, 371, 372,
378, 529, 637, 638, 646, 647, 659
South African National Defence Union v Minister of Defence
and Others 2007 (1) SA 402 (SCA) 658, 660, 661
South African National Defence Union v Minister of Defence
and Others (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400;
2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC); (2007)
28 ILJ 1909 (CC) (30 May 2007) 403, 429, 659, 661
South African Police Service v Police and Prisons Civil
Rights Union and Another (CCT 89/10) [2011] ZACC 21;
[2011] 9 BLLR 831 (CC); 2011 (9) BCLR 992 (CC); 2011
(6) SA 1 (CC); (2011) 32 ILJ 1603 (CC) (9 June 2011) 339
South African Transport and Allied Workers Union and
Another v Garvas and Others (CCT 112/11) [2012] ZACC
13; 2012 (8) BCLR 840 (CC); [2012] 10 BLLR 959 (CC);
(2012) 33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13 June
2012) 152, 551, 559, 560
South African Transport and Allied Workers Union (SATAWU)
and Others v Moloto NO and Another (CCT128/11) [2012]
ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR 1177
(CC); [2012] 12 BLLR 1193 (CC); (2012) 33 ILJ 2549 (CC)
(21 September 2012) 653, 654, 655
South African Veterinary Council and Another v Szymanski
(79/2001) [2003] ZASCA 11 (14 March 2003) 610
Speaker of the National Assembly v De Lille MP and Another
(297/98) [1999] ZASCA 50; [1999] 4 All SA 241 (A) (26
August 1999) 117, 118, 119
Strydom v Nederduitse Gereformeerde Gemeente Moreleta
Park (26926/05) [2008] ZAEQC 1; (2009) 30 ILJ 868 (EqC)
(27 August 2008) 494, 495
Sunday Times v the United Kingdom (1979–80) 2 EHRR 245
Eur Crt of HR 1979-04-26 362
T
Taylor v Kurstag NO and Others 2005 (1) SA 362 (w); 2005
(7) BCLR 705 (W); [2004] 4 All SA 317 (W) 493, 512, 513
Teddy Bear Clinic for Abused Children and Another v
Minister of Justice and Constitutional Development and
Another (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR
1429 (CC) (3 October 2013) 419, 457, 461, 465
The Administrator, Transvaal and The Firs Investments (Pty)
Ltd v Johannesburg City Council 1971 (1) SA 56 (A) 604
Thebus and Another v S (CCT36/02) [2003] ZACC 12; 2003
(6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (28 August
2003) 214, 343, 344
Theron en Andere v Ring van Wellington van die NG
Sendingkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A)
604
Thint Holdings (Southern Africa) (Pty) Ltd and Another v
National Director of Public Prosecutions, Zuma v National
Director of Public Prosecutions (CCT 90/07, CCT 92/07)
[2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA
141 (CC); 2009 (3) BCLR 309 (CC) (31 July 2008) 532,
630
Tongoane and Others v National Minister for Agriculture and
Land Affairs and Others (CCT100/09) [2010] ZACC 10;
2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May
2010) 100, 157, 158, 160
Torcaso v Watkins 367 U.S. 488 499
Transnet Ltd. v Goodman Brothers (Pty) Ltd (373/98) [2000]
ZASCA 62; 2001 (1) SA 853 (SCA) (9 November 2000)
616, 617
Transvaal Agricultural Union v Minister of Land Affairs and
Another (CCT21/96) [1996] ZACC 22; 1996 (12) BCLR
1573; 1997 (2) SA 621 (18 November 1996) 220, 221
Tsotetsi v Mutual and Federal Insurance Company Ltd
(CCT16/95) [1996] ZACC 19; 1996 (11) BCLR 1439; 1997
(1) SA 585 (12 September 1996) 390, 395
Tulip Diamonds FZE v Minister for Justice and Constitutional
Development and Others (CCT 93/12) [2013] ZACC 19;
2013 (10) BCLR 1180 (CC); 2013 (2) SACR 443 (CC) (13
June 2013) 327
U
Union Government (Minister of Mines and Industries) v Union
Steel Corporation (South Africa) Ltd 1928 AD 220 604
Union of Refugee Women and Others v Director, Private
Security Industry Regulatory Authority and Others (CCT
39/06) [2006] ZACC 23; 2007 (4) BCLR 339 (CC); (2007)
28 ILJ 537 (CC) (12 December 2006) 617
Unitas Hospital v Van Wyk and Another (231/05) [2006]
ZASCA 34; 2006 (4) SA 436 (SCA); [2006] 4 All SA 231
(SCA) (27 March 2006) 623
United Democratic Movement (UDM) v President of the
Republic of South Africa and Others (No 2) (CCT23/02)
[2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179
(4 October 2002) 91, 92, 218
Uthukela District Municipality and Others v President of the
Republic of South Africa and Others (CCT7/02) [2002]
ZACC 11; 2002 (11) BCLR 1220; 2003 (1) SA 678 (CC)
(12 June 2002) 274
V
Van der Merwe v Road Accident Fund and Another
(CCT48/05) [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006
(6) BCLR 682 (CC) (30 March 2006) 432
Van der Spuy v General Council of the Bar of South Africa
(CCT48/01) [2002] ZACC 17; 2002 (5) SA 392; 2002 (10)
BCLR 1092 (18 July 2002) 220, 221
Van der Walt v Metcash Trading Limited (CCT37/01) [2002]
ZACC 4; 2002 (4) SA 317; 2002 (5) BCLR 454 (11 April
2002) 633
Van Eck NO and Van Rensburg NO v Etna Stores 1947 (2)
SA 984 (A) 603, 604
Van Zyl v New National Party and Others (2000/002) [2003]
ZAWCHC 17; [2003] 3 All SA 737 (C) (22 May 2005) 138
Veldman v Director of Public Prosecutions (Witwatersrand
Local Division) (CCT19/05) [2005] ZACC 22; 2007 (3) SA
210 (CC); 2007 (8) BCLR 827 (CC) (5 December 2005)
355
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-
Tech Systems (Pty) Ltd and Another (CCT 34/10) [2010]
ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR 207 (CC)
(23 November 2010) 327
Volks NO v Robinson and Others (CCT12/04) [2005] ZACC
2; 2005 (5) BCLR 446 (CC) (21 February 2005) 426
Von Abo v President of the Republic of South Africa (CCT
67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009
(5) SA 345 (CC) (5 June 2009) 193
W
Walele v City of Cape Town and Others (CCT 64/07) [2008]
ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067
(CC) (13 June 2008) 430, 586, 610, 621
Wallach v High Court of South Africa (Witwatersrand Local
Division) and Others (CCT2/03) [2003] ZACC 6; 2003 (5)
SA 273 (CC) (4 April 2003) 223
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
(CCT78/07) [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008
(11) BCLR 1123 (CC) (25 July 2008) 396
Wessels v Minister for Justice and Constitutional
Development and Others (594/09) [2009] ZAGPPHC 81;
2010 (1) SA 128 (GNP) (2 June 2009) 617
Western Cape Provincial Government and Others In Re:
DVB Behuising (Pty) Limited v North West Provincial
Government and Another (CCT22/99) [2000] ZACC 2;
 2000 (4) BCLR 347; 2001 (1) SA 500 (2 March 2000) 157,
247
Wittmann v Deutscher Schulverein 1998 (4) SA 423 (T) 500,
501
Women’s Legal Trust v President of the Republic of South
Africa and Others (CCT13/09) [2009] ZACC 20; 2009 (6)
SA 94 (CC) (22 July 2009) 217, 218, 219
Z
Zantsi v Council of State, Ciskei and Others (CCT24/94)
[1995] ZACC 9; 1995 (10) BCLR 1424; 1995 (4) SA 615
(22 September 1995) 338
Zealand v Minister for Justice and Constitutional
Development and Another (CCT54/07) [2008] ZACC 3;
2008 (6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); 2008 (4)
SA 458 (CC) (11 March 2008) 359
Zuma v National Director of Public Prosecutions (8652/08)
[2008] ZAKZHC 71; [2009] 1 All SA 54 (N); 2009 (1) BCLR
62 (N) (12 September 2008) 229, 252, 357, 399
Aliens Control Act 96 of 1991
Section 25(9)(b) 458
Attorney-General Act 92 of 1992
Section 5 251
Bantu Authorities Act 68 of 1951 14
Basic Conditions of Employment Act 75 of 1997 (BCEA)
634, 663
Section 6(3) 639
Black Administration Act 38 of 1927 (BAA) 207, 513, 514
Section 1 13
Section 12 13, 247, 248
Section 12(4) 248
Section 20 247, 248
Section 20(6) 248
Section 23 383
Bophuthatswana Traditional Courts Act 29 of 1979 247
Broadcasting Code 544
Chiefs Courts Act 6 of 1993 (Transkei) 247
Children’s Act 38 of 2005 212
Civil Union Act 17 of 2006 487
Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic
 Communities Act 19 of 2002
Section 5 506
Commissions Act 8 of 1947
Section 1(1)(a) 587
Communal Land Rights Act 11 of 2004 (CLaRA) 100
Compensation for Occupational Injuries and Diseases
Act 130 of 1993 432
Constitutional Court Complementary Act 13 of 1995
Section 5 245
Constitutional Principles 21, 25, 36, 60
Constitutional Principle VI 60, 63, 66
Constitutional Principle IX 621
Constitutional Principle XVI 270
Constitutional Principle XVIII 270, 271
Constitutional Principle XIX 270
Constitutional Principle XXI 270
Constitutional Principle XXII 271
Constitutional Principle XXIII 271
Constitutional Principle XXIV 271
Constitutional Principle XXVI 271
Postamble 101
Schedule 4 270
Section 7 336
Section 7(2) 685
Section 8 183
Section 8(4) 445
Section 10 350
Section 11 350
Section 12 350
Section 13 360
Section 14 488
Section 14(1) 350
Section 14(2) 489, 500
Section 15 350
Section 16 350
Section 17 350
Section 18 350
Section 21 350
Section 23 350, 621
Section 24 350, 582, 584, 609
Section 24(b) 608
Section 25(3)(c) 365
Section 30(1)(d) 350
Section 30(1)(e) 350
Section 30(2) 350
Section 33 349, 350, 351, 352, 357, 365, 374
Section 33(1) 349, 350, 351, 363, 365, 366, 371, 696
Section 33(1)(b) 351, 352
Section 33(1)(b)(aa) 350
Section 33(1)(b)(bb) 350
Section 35(3) 336
Section 37 165
Sections 68–73 20
Section 68(1) 21
Section 68(2) 21
Section 68(3) 21
Section 71(1)(a) 21
Section 71(2) 21
Section 71(3) 22
Section 72 24
Section 73 24
 Section 73(1) 21
Section 73(2) 21
Section 73(8) 24
Section 82(1)(k) 361
Section 98(6) 401
Section 109 245
Section 126(3) 289
Section 235 704
Constitution Fifteenth Amendment Act of 2008
Section 2 131
Constitution of the Republic of South Africa Act 200 of
1993 (interim Constitution) 15, 19, 36, 74, 82, 101, 102,
119, 183, 188, 199, 209, 213, 221, 222, 224, 225, 229,
269, 333, 354, 364, 375, 383, 395, 407, 426, 616, 660
Chapter 3 349, 357, 366, 696
Chapter 5 21
Constitution of the Republic of South Africa, 1996 (final
Constitution) 5, 8, 9, 16, 23, 24, 25, 30, 32, 35, 36, 38,
39, 40, 49, 52, 53, 64, 67, 71, 72, 73, 74, 75, 77, 83, 84,
85, 87, 89, 93, 96, 104, 105, 106, 116, 121, 122, 147, 153,
155, 164, 165, 181, 190, 191, 193, 203, 204, 208, 227,
228, 229, 248, 251, 254, 261, 265, 269, 270, 319, 328,
366, 368, 375, 379, 394, 400, 407, 408, 412, 415, 422,
459, 464, 468, 470, 482, 486, 490, 494, 525, 526, 540,
590, 597, 624, 628, 666
Chapter 1 54, 78
Chapter 2 370, 568
Chapter 3 31, 59, 60, 99, 150, 151, 253, 260, 273, 274
Chapter 4 65, 99, 101
Chapter 5 68, 99, 101
Chapter 6 99
Chapter 7 99
Chapter 8 69, 99, 101
Chapter 9 257, 274, 506
Chapter 12 247
Chapter 13 303, 304, 315
Chapter 14 55
Preamble 33, 86, 95
Schedule 2 173, 177, 237
Schedule 4 99, 109, 143, 157, 159, 160, 272, 278, 279,
280, 281, 283, 284, 285, 286, 287, 288, 290, 296, 297,
302, 314, 315
Schedule 4 Part A 296, 298
Schedule 4 Part B 272, 295, 296, 297, 299, 300, 301, 315
Schedule 5 99, 109, 143, 159, 272, 278, 279, 280, 281,
283, 284, 285, 286, 287, 290, 296, 297, 302, 314, 315
Schedule 5 Part A 298
Schedule 5 Part B 272, 295, 297, 299, 300, 315
Schedule 6
Section 16 247
Section 23 583
Section 23(2)(b) 584
Section 1 26, 28, 55, 56, 57, 58, 59, 86, 90, 101, 133, 158,
219, 561, 586, 593, 598, 619, 697
Section 1(a) 29, 233, 418, 456, 518
Section 1(c) 54, 81, 103, 348
Section 1(d) 63, 86, 90, 91, 110, 123, 168, 565, 619, 697
Section 2 26, 54, 55, 56, 393
Section 6 259, 467, 504, 516, 518, 524
Section 6(1) 518, 524
Section 6(2) 516, 518, 524
Section 6(3) 524
Section 6(4) 504, 516, 524
Section 7 28, 101, 321
Section 7(1) 29, 95
Section 7(2) 26, 29, 632, 665, 671, 672, 674, 677
Section 8 321, 665, 685
Section 8(1) 103, 324, 330, 331, 332, 333, 334, 336, 337,
338, 346, 348, 685
Section 8(2) 29, 330, 331, 332, 333, 336, 337, 338, 346,
391, 392, 513, 685
Section 8(3) 332, 391, 392, 513, 515, 685
Section 8(3)(b) 332
Section 8(4) 325, 326, 345
Section 9 183, 325, 380, 382, 383, 404, 420, 421, 423,
425, 426, 428, 429, 430, 449, 452, 453, 455, 456, 465,
503, 505, 586, 669, 679, 716
Section 9(1) 417, 425, 429, 430, 431, 432, 433, 444, 465,
518
Section 9(2) 417, 429, 430, 431, 433, 434, 435, 438, 439,
440, 441, 443, 444, 454, 455, 465, 466, 518, 568
Section 9(3) 382, 412, 425, 427, 429, 430, 431, 434, 438,
441, 442, 443, 444, 445, 446, 449, 450, 451, 452, 453,
454, 465, 466, 503, 504, 505, 509, 514, 517, 518, 519,
568, 669, 686, 710, 716
Section 9(4) 29, 215, 348, 382, 383, 452, 466, 519, 669
Section 9(5) 445, 450
Section 10 456, 457, 460, 461, 466
Section 11 325, 669, 670
Section 13 324
Section 14 325, 358, 462, 466
Section 15 355, 382, 483, 484, 488, 492, 496, 499
Section 15(1) 467, 483, 487, 501, 504
Section 15(2) 483, 488, 489, 499, 500, 501, 524
Section 15(3) 501, 502, 503
Section 15(3)(a)(i) 464, 501
Section 16 118, 325, 331, 332, 359, 398, 528, 529, 532,
533, 537, 549, 577
Section 16(1) 357, 528, 529, 533, 534, 536, 545
Section 16(2) 359, 505, 529, 532, 533, 534, 541, 544, 545
Section 16(2)(a) 544
Section 16(2)(b) 544
Section 16(2)(c) 544, 545, 546
Section 17 550, 552, 555, 557, 560, 605, 674
Section 18 168, 325, 469, 577
Section 19 90, 91, 92, 110, 111, 124, 323, 325, 478, 479,
561, 562, 567, 577, 630, 674
Section 19(1) 90, 478, 560, 562, 563, 567
Section 19(1)(a) 324
Section 19(2) 90, 128, 478, 560, 567
Section 19(3) 91, 127, 560, 569, 570, 571, 572
Section 19(3)(a) 574
Section 19(3)(b) 576
Section 20 323
Section 22 323
Section 23 384, 580, 634, 635, 636, 639, 640, 641, 663
Section 23(1) 580, 636, 637, 640, 641, 645
Section 23(2)–(5) 636
Section 23(2) 637, 638, 646
Section 23(2)(a) 324, 646, 650
Section 23(2)(b) 650
Section 23(2)(c) 652
Section 23(3)(b) 650
Section 23(5) 635, 655, 657, 658, 659, 660, 661
Section 23(6) 635
Section 24 300, 382, 385, 667
Section 24(b) 668, 679
Section 25 286, 287, 325, 382, 383, 411, 682, 683, 698
Section 25(1) 383
Section 25(2) 698
Section 25(3) 698
Section 25(5) 667, 668, 679
Section 26 29, 382, 411, 460, 668, 688, 689, 694, 708, 717
Section 26(1) 668, 706, 709, 714
Section 26(2) 413, 668, 679, 689, 695, 712, 714, 718
Section 26(3) 668, 682, 683, 686, 690, 691, 700, 718
Section 27 29, 325, 382, 668, 669, 670, 688, 694, 708
Section 27(1) 668, 686, 709, 711
Section 27(1)(a) 668
Section 27(1)(b) 681, 682, 709
Section 27(1)(c) 682, 694, 709
Section 27(2) 668, 679, 695, 708, 710, 712, 718
Section 27(3) 668, 699, 703, 708, 709
Section 28 29, 323
Section 28(1)(a) 324
Section 28(1)(c) 668
Section 28(2) 672
Section 29 382, 668, 694
Section 29(1) 337, 518
Section 29(1)(a) 668
Section 29(1)(b) 668
Section 29(2) 504, 517, 520, 522, 523
Section 29(3) 501, 505, 523
Section 30 382, 467, 504, 505, 507, 508, 509, 511, 517
Section 31 355, 382, 467, 491, 492, 496, 504, 505, 507,
508, 509, 511, 512, 517, 519, 523
Section 31(1) 355, 511, 518
Section 31(2) 355, 511
Section 32 29, 185, 325, 382, 619, 620, 621, 622, 623,
662, 679
Section 33 29, 118, 185, 186, 325, 383, 581, 582, 583,
584, 585, 586, 587, 588, 593, 599, 605, 609, 662, 669,
670, 672
Section 33(1) 582, 585, 604
Section 33(2) 582
Section 33(3) 583, 584
Section 34 29, 69, 118, 325, 409, 629, 630, 631, 632, 633,
662
Section 35 323, 381, 630
Section 35(2)(e) 668, 683
Section 35(3)(h) 216
Section 35(3)(o) 217
Section 36 128, 320, 321, 347, 348, 349, 351, 353, 354,
356, 357, 362, 363, 364, 369, 370, 372, 374, 378, 380,
381, 382, 383, 384, 386, 453, 456, 466, 481, 497, 560,
571, 650, 695
Section 36(1) 95, 331, 349, 351, 352, 355, 358, 360, 361,
362, 373, 374, 376, 380, 385, 386, 387, 635, 655, 685,
693, 694, 695, 696, 699, 708, 712
Section 36(1)(b) 364, 369
Section 36(1)(c) 374
Section 36(1)(d) 364
Section 36(1)(e) 364
Section 36(2) 385
Section 37 321
Section 38 29, 321, 326, 327, 391, 392, 406, 679, 707, 721
Section 38(a)–(e) 327
Section 38(a) 327
Section 38(d) 327
Section 39 321, 344, 357, 660
Section 39(1) 29, 95, 354, 665, 671, 674, 677
Section 39(1)(b) 226
Section 39(1)(c) 226
Section 39(2) 29, 214, 217, 221, 330, 338, 339, 342, 343,
344, 346, 354, 391, 392, 399, 665, 685, 705
Section 40(1) 59, 158, 268, 273
Section 40(2) 29, 273
Section 41 95, 273
Section 41(1) 29
Section 41(1)(e) 273
Section 41(1)(f) 273
Section 41(1)(g) 273
Section 41(1)(h) 273
Section 41(1)(h)(i)–(vi) 59
Section 41(3) 274
Section 42(1) 65, 109, 123
Section 42(3) 90, 109, 132, 143
Section 42(4) 109, 134, 143
Section 42(6) 109
Section 43(a) 65
Section 44 151
Section 44(1) 297
Section 44(1)(a) 65
Section 44(1)(a)(i) 151
Section 44(1)(a)(ii) 151
Section 44(1)(a)(iii) 151, 163, 298
Section 44(1)(b)(i) 151
Section 44(1)(b)(ii) 151
Section 44(2) 151, 159, 272, 283, 284, 285, 286, 290, 315
Section 44(2)(b) 65
Section 44(4) 65
Section 45 113
Section 46 65
Section 46(1) 123
Section 46(1)(b) 570
Section 46(1)(c) 127, 570
Section 46(1)(d) 90, 110
Section 46(2) 123
Section 47 65, 130
Section 47(1) 576
Section 47(1)(b) 130
Section 47(1)(c) 130
Section 47(1)(d) 130
Section 47(1)(e) 130
Section 47(3) 576
Section 47(3)(b) 131
Section 47(3)(c) 131, 175, 564
Section 49(1) 130, 131
Section 49(2) 131
Section 50(1) 131
Section 50(2) 131, 131
Section 51(1) 131
Section 51(2) 132
Section 51(3) 109, 132
Section 52 131
Section 53(1)(a) 132
Section 53(1)(b) 132
Section 53(1)(c) 133
Section 53(2)(a) 133
Section 53(2)(b) 133
Section 54 133
Section 55 68, 109, 132
Section 55(1) 143
Section 55(2) 68, 109, 133, 151
Section 55(2)(a) 143, 146
Section 55(2)(b) 143, 148
Section 56 113, 144, 555
Section 57 65, 90, 113
Section 57(1) 113, 141
Section 57(1)(a) 133, 146
Section 57(1)(b) 90, 133
Section 57(2) 113, 141
Section 57(2)(a) 134
Section 57(2)(b) 90, 134, 564
Section 57(2)(c) 110
Section 57(2)(d) 110
Section 58 65
Section 58(1) 118, 119
Section 58(1)(a) 117
Section 58(1)(b) 117
Section 58(2) 118, 119
Section 59 94, 115, 132
Section 59(1) 120
Section 59(1)(a) 119, 143
Section 59(1)(b) 114, 143
Section 59(2) 114, 143
Section 60 65, 136
Section 60(2)(a) 137
Section 60(2)(a)(i) 137
Section 60(2)(a)(ii) 137
Section 60(2)(b) 137
Section 60(3) 137
Section 61 65
Section 61(4) 137
Section 62(2) 138
Section 62(4) 138
Section 62(4)(c) 138
Section 63(3) 109
Section 64(1) 141
Section 64(2) 141
Section 64(3) 141
Section 65(1) 141, 142
Section 65(2) 139, 142, 159
Section 66(1) 140
Section 68 68, 109, 143
Section 69 113, 140, 144
Section 70 65, 113
Section 70(1) 113, 141
Section 70(2) 113
Section 70(2)(a) 141
Section 70(2)(b) 142
Section 70(2)(c) 142
Section 71 65
Section 71(1)(a) 117
Section 71(1)(b) 117
Section 71(2) 119
Section 72 94, 115
Section 72(1) 120
Section 72(1)(a) 119, 120, 143
Section 72(1)(b) 114, 143
Section 72(2) 114, 143
Section 73(1) 159
Section 73(2) 66, 151, 152
Section 74 157, 158, 162, 168, 169, 218
Section 74(1) 55, 158
Section 74(1)(a) 58, 133
Section 74(1)(b) 58
Section 74(2) 158
Section 74(2)(a) 133
Section 74(3) 55, 158, 163
Section 74(8) 159
Section 75 142, 157, 159, 160, 161, 162, 163, 168, 169,
285
Section 75(1) 139, 159
Section 75(1)(a)–(d) 159
Section 75(2) 139, 141, 142, 159
Section 76 157, 159, 160, 161, 162, 168, 169, 285
Section 76(1) 160, 163
Section 76(1)(d) 160
Section 76(1)(e) 160
Section 76(2) 160, 163
Section 76(2)(d) 160
Section 76(2)(e) 160
Section 76(3) 159
Section 76(4) 159
Section 76(5) 109, 159
Section 77 157, 162, 163, 168, 169
Section 77(1) 161
Section 77(3) 161
Section 78(1) 160
Section 78(2) 160
Section 79 162, 218
Section 79(1) 66, 156, 162, 179, 586
Section 79(4) 162, 179
Section 79(5) 162
Section 80 218
Section 80(1) 163
Section 80(2) 163
Section 80(2)(a) 218
Section 80(2)(b) 218
Section 80(3) 163
Section 82(2) 196
Section 83(a) 68, 177
Section 83(b) 68
Section 84 184, 279
Section 84(1) 68
Section 84(2) 178, 186
Section 84(2)(f) 587
Section 84(2)(g) 88
Section 85 196
Section 85(1) 68, 179
Section 85(1)(b) 66
Section 85(1)(d) 66
Section 85(2) 177, 179, 198, 199
Section 85(2)(a)–(e) 68
Section 86 109, 111
Section 86(1) 131, 174
Section 86(2) 131, 587
Section 86(3) 174
Section 87 174
Section 88(2) 174
Section 89 109, 111, 131, 174, 200
Section 89(1) 69, 133, 146, 174
Section 89(2) 174
Section 90(1) 176
Section 90(2) 177
Section 90(3) 177
Section 90(4) 177
Section 91(1) 68, 195
Section 91(2) 68, 179, 184, 195, 196, 197, 586
Section 91(3) 66, 68, 109
Section 91(3)(a) 195
Section 91(3)(b) 195
Section 91(3)(c) 195
Section 91(4) 179
Section 91(5) 196, 199
Section 92 143
Section 92(1) 197, 199
Section 92(2) 68, 143, 144, 195, 197, 198
Section 92(3)(b) 68, 198
Section 96 198
Section 96(2) 199
Section 96(3) 197
Section 98 199
Section 99 199, 298
Section 100 273, 276
Section 100(1)(b) 148
Section 101(1) 182
Section 101(2) 177, 183
Section 102 68, 110, 111, 131, 174, 176, 195, 200, 631
Section 102(1) 195, 196
Section 102(2) 145, 146, 174, 195
Section 103(1) 277
Sections 104–124 277
Section 104 135
Section 104(1) 297
Section 104(1)(b)(i) 278
Section 104(1)(b)(ii) 278
Section 104(1)(b)(iii) 278, 281
Section 104(1)(b)(iv) 278, 281
Section 104(1)(c) 278, 298
Section 104(2) 278
Section 104(4) 278
Section 105(1)(d) 90
Section 105(2) 279
Section 106 279
Section 106(1) 576
Section 106(3) 576
Section 109 279
Section 113 279
Section 115 555
Section 118 94, 115
Section 118(1)(a) 120
Section 121 218, 280
Section 122 218
Section 122(2)(a) 218
Section 122(2)(b) 218
Sections 125–141 277
Section 125(2) 279
Section 125(2)(c) 277
Section 125(3) 279
Section 125(4) 149, 279
Section 126 280, 298
Section 127(2)(f) 88
Section 128 280
Section 130(3) 280
Section 139 276, 302
Section 139(1) 302
Section 139(1)(b) 148
Section 139(4) 302
Section 139(5) 302
Section 141 280
Section 142 278
Section 144 219
Section 146 151, 271, 272, 275, 283, 284, 287, 288, 289,
290, 315
Section 146(1) 288
Section 146(2) 288
Section 146(2)(a) 288
Section 146(2)(b) 288
Section 146(2)(c) 289
Section 146(3) 288, 289
Section 146(5) 283
Section 147(2) 290
Section 149 288
Section 151(4) 299, 300, 315
Section 152 291, 670
Section 152(1) 291
Section 152(1)(d) 300
Section 153 291, 670
Section 154(1) 301
Section 155 292, 294
Section 155(3)(b) 293
Section 155(4) 295
Section 155(5) 282
Section 155(6) 301
Section 155(6)(a) 297
Section 155(7) 297, 302
Section 156 295
Section 156(1)(a) 295
Section 156(1)(b) 295
Section 156(2) 295
Section 156(3) 300, 315
Section 156(4) 298
Section 156(5) 295, 299, 300
Section 157(2)(a) 90
Section 160(6) 117
Section 161 117
Section 163 159
Section 165 102, 246, 409
Section 165(1) 69, 102
Section 165(2) 70, 102, 233, 249
Section 165(3) 70
Section 165(4) 70
Section 165(5) 54
Section 165(6) 210
Section 166 209
Section 166(a)–(e) 69
Section 166(b) 210
Section 166(d) 246
Section 167 321
Section 167(1) 210
Section 167(3) 213, 216
Section 167(3)(a) 69, 215, 221
Section 167(3)(b) 213, 215, 221
Section 167(3)(c) 215, 221
Section 167(4)(a) 215, 218
Section 167(4)(b) 218
Section 167(4)(c) 218
Section 167(4)(d) 218
Section 167(4)(e) 103, 219
Section 167(5) 69, 103, 217, 223
Section 167(6) 220
Section 167(7) 213
Section 168(1) 210
Section 168(3) 213, 222
Section 169 212
Section 169(1)(a) 223
Section 169(2) 212
Section 170 69, 211, 223
Section 172 69, 321, 721
Section 172(1) 54, 103, 215, 391, 392
Section 172(1)(a) 202, 341, 392, 393, 396, 684
Section 172(1)(b) 341, 392
Section 172(1)(b)(i) 392, 401
Section 172(1)(b)(ii) 392, 403, 404
Section 172(2)(a) 219
Section 173 342, 385, 386, 409
Section 174 69
Section 174(1) 225, 232
Section 174(2) 225, 232, 234, 235, 236
Section 174(3) 182, 231
Section 174(4) 231
Section 174(4)(a) 231
Section 174(4)(b) 231
Section 174(4)(c) 231
Section 174(5) 232
Section 174(6) 182, 232
Section 174(7) 246
Section 174(8) 237
Section 176 238, 239
Section 176(1) 70, 166, 167, 189, 239, 240
Section 176(2) 70, 241
Section 176(3) 70, 244
Section 177 69, 70, 241
Section 177(2) 70
Section 177(3) 241
Section 178 101, 230
Section 178(1) 230
Section 178(1)(a)–(j) 230
Section 179 249
Section 179(1) 249
Section 179(1)(a) 179, 182, 249
Section 179(2) 249
Section 179(4) 250, 252
Section 179(6) 250
Section 181 506, 568
Section 181(1) 257
Section 181(1)(a) 101
Section 181(1)(e) 101
Section 181(1)(f) 101, 127
Section 181(2) 127, 258, 259, 264, 568
Section 181(3) 259, 260, 262, 568
Section 181(4) 259, 260, 568
Section 181(5) 258, 259, 568
Section 182 159
Section 182(1) 264
Section 182(2) 264
Section 182(5) 264
Section 184(3) 678
Section 185 506
Section 188(1) 264
Section 188(2) 264
Section 190 568
Section 190(1) 568, 569
Section 190(1)(a)–(c) 127
Section 192 259, 544
Section 193(4) 109, 182
Section 195 281, 282, 283
Section 195(3) 159
Section 195(4) 159
Section 196 159
Section 196(2) 259
Section 196(3) 259
Section 197 159
Section 197(1) 173
Section 197(3) 562
Section 199 340
Section 200(1) 370, 371
Section 202(1) 179
Section 203 149
Section 207(1) 179
Section 209 187
Section 209(2) 179, 185, 187
Section 211 27
Section 211(1) 167, 247
Section 212 27
Section 212(1) 247
Section 212(2)(a) 167
Section 212(2)(e) 100
Section 214 161, 310
Section 214(1) 306
Section 214(2) 306, 307
Section 215 281, 282, 283, 308, 309
Section 215(1) 308, 315
Section 215(2) 308
Section 215(3) 308
Section 216 281, 282, 283, 309
Section 216(3)(b) 149
Section 217 311, 312, 313, 315
Section 217(1) 314, 391
Section 217(2) 311, 314
Section 220(2) 259
Section 223 310
Section 224(2) 310
Section 226 310
 Section 227 308
Section 228(1) 304
Section 228(2) 304, 305
Section 229(1) 305
Section 229(2) 305
Section 234 29
Section 236 565
Section 237 55, 162
Section 238(a) 601
Section 239 127
Section 239 148, 260, 274, 334, 335, 595
Section 239(b)(i) 335
Section 239(b)(ii) 335
Section 239(2) 260
Constitution of the Western Cape of 1998 278
Section 13 279
Constitution Seventeenth Amendment Act of 2012 213,
221, 222
Constitution Twelfth Amendment Act of 2005 293
Criminal Procedure Act 51 of 1977
Section 309B 381
Section 309C 381
Cross-Boundary Municipalities Laws Repeal and Related
Matters Act 23 of 2005 293
Defence Act 44 of 1957
Section 126B(1) 637, 638, 646, 659
Section 126B(4) 378
Determination of Delegates (National Council of
Provinces) Act 69 of 1998 136
Division of Revenue Bill 2013
Explanatory Memorandum 308
Division of Revenue Act (DORA) 306, 307, 309
Divorce Act 70 of 1979
Section 12 541, 542
Domestic Violence Act 116 of 1998 212
Drugs and Drug Trafficking Act 140 of 1992 492
Section 21(1)(a)(i) 365, 371
Electoral Act 73 of 1998 127, 130, 361, 573
Schedule 3 123, 279
Section 1 570, 572
Section 6 570, 572
Section 6(1) 572
Section 8 571
Section 8(2)(f) 128, 574
Section 9 571
Section 24B(1) 128
Section 24B(2) 128, 574
Sections 26–31 564
Section 26(b) 564
Section 27 564
Section 33 129
Section 33(1)(b) 576
Section 33(1)(e) 575, 576
Section 96 569
Section 99 564
Electoral Commission Act 51 of 1996 127, 261, 568, 674
Section 3 263
Section 5(1)(e) 569
Section 6 263
Section 6(2) 263
Section 6(3)–(5) 263
Section 7(3) 263
Section 15 564
Section 16 564
Section 17 564
Section 18 569
Electoral Laws Amendment Act 34 of 2003 574, 575
Elimination and Prevention of the Re-emergence of
Slums Act 6 of 2007 286
Section 16 287
Employment Equity Act 55 of 1998 431, 634, 663
Expropriation Act 63 of 1975
Section 12 411
Extension of Security of Tenure Act 62 of 1997 (ESTA)
690, 699, 705
Section 1 698
Section 2(1) 698
Section 8(1) 679, 698
Section 9(3)(a) 700
Section 10(2) 700
Section 10(3) 700
Section 11(1) 679, 698
Section 11(2) 679, 698
Section 11(3) 679, 698, 700
Film and Publications Act 65 of 1996 543
Section 1 534
Section 16(2)(a) 542
Section 22 535
Section 27(1) 534, 535
Financial Management of Parliament Act 10 of 2009 280,
281, 282
Financial Management of the Limpopo Provincial
Legislature Bill, 2009 280
Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972
(FCDA) 705
Free State Petitions Act 2 of 2008 555
Gauteng Petitions Act 5 of 2002 555
General Law Amendment 46 of 1935 251
General Law Amendment Act 37 of 1963 18
General Regulations of the South African National
Defence Force and the Reserve
Chapter 20 659, 661
Glen Grey Act 25 of 1894 8, 9, 13
Housing Act 107 of 1997 682
Identification Act 68 of 1997 572
Immorality Act 23 of 1957
Section 16 462
Income Tax Act 58 of 1962
Section 83(3) 212
Independent Broadcasting Authority Act 153 of 1993
Schedule 1 Clause 2(a) of the Code of Conduct for
Broadcasting Services 377, 398
Independent Commission for the Remuneration of Public
Office-bearers Act 92 of 1997
Section 2 244
Independent Communications Authority of South Africa
Act 13 of 2000 544
Intergovernmental Fiscal Relations Act 97 of 1997
Section 2 307
Section 5 307
Section 9(1) 307
Section 10(1) 307
Section 10(3) 307
Intergovernmental Relations Framework Act 13 of 2005
(IGRFA)
Section 1 276
Section 2 275
Section 4 275
Section 4(a)–(d) 275
Section 6 275
Section 9 275
Section 18 275
Section 24 275
Section 35 276
Section 35(3) 276
Section 39(1)(b) 276
Section 40 276
Section 41 276
Section 42 276
 Section 42(3) 277
Section 43 277
Internal Security Act 74 of 1982 528, 556
Intestate Succession Act 81 of 1987 514
Joint Rules of Parliament
Joint Rule 151 157
Joint Rule 203(2) 179
Judges Remuneration and Condition of Employment Act
47 of 2001
Section 2(6) 244
Section 3(1)(a) 188
Section 3(2) 241
Section 4 238, 241
Section 4(1) 188
Section 4(2) 188
Section 4(4) 241
Section 8 238, 239, 242
Section 8(a) 166, 167, 188, 189, 239, 241
Section 14 242, 244
Section 15 242
Section 17 242
Section 22 242
Section 33 242
Judicial Service Commission Act 9 of 1994 (JSC Act) 70,
230
KwaNdebele Traditional Authorities Act 8 of 1984 247
KwaZulu Act on the Code of Zulu Law 16 of 1985 515
KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990
247
KwaZulu Ingonyama Trust Act 3 of 1994 306
KwaZulu-Natal Petitions Act 4 of 2003
Section 1 555, 556
Labour Relations Act 28 of 1956 635, 641
Section 1 642
Labour Relations Act 66 of 1995 (LRA) 335, 580, 634, 635,
641, 645, 654, 660, 663
Chapter 2 647, 648
Chapter 3 650
Schedule 8 Code of Good Practice: Dismissal
Item 2 643
Item 8 643
Item 9 643
Item 10 643
Item 11 643
Section 3(b) 384
Section 4 647, 648, 650
Section 5 648
Section 6 648, 649
Section 7 649
Section 11 651
Section 12 650, 651
Section 13 650, 651
Section 14 650, 651
Section 14(1) 651
Section 15 650, 651
Section 16 650, 651
Section 16(1) 651
 Section 25 649, 650
Section 25(1) 650
Section 26 649, 650
Section 26(1) 649
Section 28 657
Section 29 656
Section 31 657
Section 32 657
Section 64 652, 653
Section 64(1) 652, 653
Section 64(1)(b) 653
Section 64(1)(d) 652
Section 69(1) 554
Section 69(2) 554
Section 69(3) 554
Section 151 211
Section 186(1) 642
Section 186(2) 644, 645
Section 187 643
Section 188(1) 643
Section 188(1)(b) 644
Section 200A(1) 639
Section 200A(2) 639
Section 213 647, 652
Labour Relations Bill
Explanatory Memorandum 656
Land Reform (Labour Tenants) Act 3 of 1996 (Labour
Tenants Act) 690, 705
Section 1 698
Limpopo Petitions Act 4 of 2003 555
Liquor Act 27 of 1989 490, 491
Liquor Bill B 131B–98 284
Local Government: Municipal Demarcation Act 27 of
1998 293
Local Government: Municipal Electoral Act 27 of 2000
127
Section 14 565
Section 17 565
Local Government: Municipal Property Rates Act 6 of
2004 305
Local Government: Municipal Structures Act 117 of 1998
295
Section 1 292
Section 2 292
Section 3 292
Section 7 294
Section 8 294
Section 9 294
Section 10 294
Section 28 116
Section 28(1) 117
Section 28(2) 117
Local Government: Municipal Systems Act 32 of 2000
291, 299, 597
Section 4(2)(f) 670
Section 23(1)(c) 300
Section 73 670
Local Government Transition Act 209 of 1993 67
 Section 16A 166
Section 16A(1) 165
Magistrates Act 90 of 1993 245
Section 3 246
Section 3(1)(a) 247
Sections 10–16 212
Magistrates’ Courts Act 32 of 1944 686, 693, 699
Section 9(1)(b) 245
Section 66(1)(a) 706
Section 110(1) 223
Section 110(2) 224
Maintenance Act 99 of 1998 212
Mandating Procedures of Provinces Act 52 of 2008 139,
142
Schedule 1 Section 5 140
Marriage Act 25 of 1961 405, 501
Medicines and Related Substances Control Act 101 of
1965 492
Mental Health Act 18 of 1973 571
Section 68(4) 377
Money Bills Amendment Procedure and Related Matters
Act 9 of 2009 161
Mpumalanga Petitions Act 6 of 2000 555
Municipal Fiscal Powers and Functions Act 12 of 2007
305
Natal Code of Zulu Law Proclamation R151 of 1987 515
National Building Regulations and Building Standards
Act 103 of 1977
Section 29(1) 301
National Forests Act 84 of 1998 306
National House of Traditional Leaders Act 22 of 2009
(NHTLA) 100
Section 2 167
Section 3(1) 167
Section 3(2) 167
Section 3(3) 167
Section 11(1)(a) 168
Section 11(2)(b) 168
Section 11(2)(e) 168
Section 12(2)(a) 168
National Prosecuting Authority Act 32 of 1998 (NPA Act)
249, 253, 254, 256, 399
Section 9 182
Section 9(1) 250
Section 9(2) 250
Section 12(1) 250
Section 12(6) 250
Section 12(7) 250
Section 22(2)(c) 252
Section 32(1)(a) 252
Section 32(1)(b) 252
Section 33(2) 252
National States Citizenship Act 26 of 1970 269
National Veld and Forest Fire Act 101 of 1998 306
Native Representative Act 12 of 1936 11
Northern Cape Petitions Act 8 of 2009 555
North West Petitions Act 2 of 2010 555
Orange Free State Constitution of 1854 6
Pan South African Language Board Act 59 of 1995
Section 3 525
Section 11 525
Post Office Act 44 of 1958 432
Powers and Privileges of Parliament Act 91 of 1963
Section 5 118
Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004 118
Preferential Procurement Policy Framework Act 5 of
2000 (PPPFA) 311, 312
Section 2 314
Prevention of Illegal Eviction from an Unlawful
Occupation of Land Act 19 of 1998 (PIE Act) 287, 682,
683, 690, 691, 695, 705
Section 4 701
Section 4(6) 698
Section 4(7) 698
Section 5(1)(b) 698
Section 6 698, 700
Section 6(1) 698
Section 6(3) 698
Section 6(3)(b) 700
Section 6(3)(c) 700
Section 7 698
Private Security Industry Regulation Act 56 of 2001
 Section 1 340
Section 1(a) 340
Section 20(1)(a) 340
Prohibition of Mixed Marriages Act 55 of 1949 462
Promotion of Access to Information Act 2 of 2000 (PAIA)
185, 477, 478, 579, 621, 624, 662
Section 1 623
Section 9 622, 623
Section 11 623
Section 11(1) 623
Section 34 625
Section 35 625
Section 36 625
Section 37 626
Section 38 626
Section 40 626
Section 42 626
Section 46 626
Section 50 623
Section 50(1)(a) 566
Section 63 625
Section 64 625
Section 65 626
Section 66 626
Section 67 626
Section 70 626
Section 80 627, 628, 629
Promotion of Administrative Justice Act 3 of 2000
(PAJA) 311, 335, 520, 585, 586, 592, 683
Preamble 598
Section 1 593, 594, 595, 596, 603, 609, 610, 662
Section 2 599
Section 3 579, 593, 596, 597, 598, 606, 607, 609, 610, 614
Section 3(1) 597, 598, 607
Section 3(2) 384, 385, 598, 607
Section 3(2)(a) 611
Section 3(2)(b) 610, 611
Section 3(2)(b)(ii) 611
Section 3(3) 607, 612
Section 3(3)(c) 611
Section 3(4) 607, 611, 612
Section 3(4)(a) 611
Section 3(4)(b) 611
Section 3(5) 607
Section 4 384, 579, 584, 613, 614
Section 4(1) 613
Section 5 313, 593, 611, 615, 616, 617
Section 5(1) 616
Section 5(2) 616
Section 5(3) 616
Section 5(4) 616
Section 5(4)(b) 618
Section 5(5) 616, 617
Section 6(2) 600
Section 6(2)(a) 593, 601
Section 6(2)(b) 593, 602
Section 6(2)(d) 593, 603
Section 6(2)(e) 593, 603
Section 6(2)(f) 593
Section 6(2)(h) 593, 604, 605
Section 6(2)(i) 593
Section 10 584
 Section 33 385
Promotion of Bantu Self-government Act 46 of 1959 14
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (PEPUDA) 215, 380, 417,
425, 429, 452, 466, 475, 494, 548, 577, 586
Section 1 453, 519, 545
Section 6 476, 519
Section 10 545, 546, 549
Section 10(1) 549
Section 12 545, 549
Section 13 453
Section 14 384, 431, 453, 454, 455
Section 14(2) 476
Section 14(2)(c) 454
Section 14(3) 476
Section 32 669
Section 34 669
Section 34(1)(a) 669
Promotion of National Unity and Reconciliation Act 34 of
1995
Section 20(7) 385
Protected Disclosures Act 26 of 2000 644
Protection of State Information Bill B1.4 of 2010 (Secrecy
Bill) 558
Section 1.1 537
Section 8 538
Section 32 538
Section 41 538, 539
Section 45 538
 Section 46 538
Provincial Tax Regulation Process Act 53 of 2001 305
Public Finance Management Act 1 of 1999 (PFMA)
Section 5 309
Section 6 309
Section 11 309
Section 17 309
Section 18 309
Section 21 310
Section 27(1) 308
Section 27(2) 308
Section 27(3) 308
Public Funding of Represented Political Parties Act 103
of 1997 565
Public Protector Act 23 of 1994
Section 9(1)(b) 259
Public Service Act 111 of 1984 245
Public Service Act 103 of 1994
Section 1 173
Section 8 173
Rating of State Property Act 79 of 1984 (Rating Act)
Section 3 305, 306
Section 3(3)(a) 305
Recognition of Customary Marriages Act 120 of 1998
(RCMA) 515
Section 1 502
Section 6 503
Section 7(6) 503
Regulation of Gatherings Act 205 of 1993 (Gatherings
Act) 527, 577
Section 1 553
Section 3(2) 558
Section 3(5)(c) 556
Section 4(1) 556
Section 5 557
Section 9(2)(e) 556
Section 11(1) 558
Section 11(2) 558, 559, 560
Regulations Relating to Compulsory National Standards
and Measures to Conserve Water 681
Rental Housing Act 50 of 1999 705
Republic of South Africa Constitution Act 32 of 1961
Sections 7–15 53
Section 59 12, 53
Section 108 53
Section 118 53
Republic of South Africa Constitution Act 110 of 1983 20,
173, 291
Section 14 14
Section 15 15
Section 16 15
Restitution of Land Rights Act 22 of 1994 213
Section 22 212
Riotous Assemblies Act 17 of 1956 556
Riotous Assemblies and Criminal Law Amendment Act
27 of 1914
 Section 1(12) 12
Road Traffic Act 93 of 1996 553
Rules of the National Assembly 113
Chapter 4 132
Chapter 12 134, 145
Rule 8 131
Rule 9 131
Rule 13 131
Rule 20 131
Rule 24 132
Rule 25(1) 132
Rule 25(2)(a) 132
Rule 25(2)(b) 132
Rule 26 132
Rule 40 114
Rule 44 117
Rule 44(2) 117
Rules 52–54 119
Rules 58–72 143
Rule 89(2) 133
Rule 94 143
Rule 103 143
Rule 103(1) 144
Rule 104 143
Rule 104(1) 144
Rule 109 145
Rule 110 145
Rule 111 145
Rule 121 134
Rule 125 134
Rule 126 134
 Rule 138 145
Rules 187–190 145
Rule 230 152
Rule 234 152
Rule 235A 152
Rules 238–240 152
Rule 325(1) 114
Rules of the National Council of Provinces
Rule 30 117
Rule 30(b) 117
Rule 83–85 143
Rule 84(1) 144
Rule 84(2) 144
Rule 103 114, 145
Rule 110(1) 114
Rules 240–244 145
Rules 243–244 148
Separate Representation of Voters Act 46 of 1951 11
Sexual Offences and Related Matters Amendment Act 32
of 2007
Section 15 461
Section 16 461
Section 56(2)(b) 461
Social Assistance Act 59 of 1992 289, 673, 704, 711, 713
Section 3(c) 686
Section 4(b)(ii) 686
Section 4B(b)(ii) 686
Social Assistance Act 13 of 2004 680
Preamble 682
 Chapter 2 679
Chapter 3 679
Chapter 4 679
South Africa Amendment Act 1 of 1958 11, 12
South African Police Service Act 68 of 1995 451
South African Press Code
Section 2.5 543, 544
South African Republic (Transvaal) Constitution of 1858
7
South African Reserve Bank Act 90 of 1989 310
South African Schools Act 84 of 1996 (SASA) 272, 306,
520, 522, 523
Section 10 355, 496, 497
Section 22 521
South African Social Security Agency Act 9 of 2004 679
Superior Courts Act 10 of 2013 244, 245
Section 4(1) 210
Section 4(1)(b) 210
Section 4(2) 210
Section 4(2)(b) 210
Section 5(1)(b) 210
Section 6 212
Section 6(2) 212
Section 8(4)(c) 212
Supreme Court Act 59 of 1959 245
Section 10 206
Section 25(1) 244
Traditional Courts Bill B 1–2012 209
Traditional Leadership and Governance Framework Act
41 of 2003 (TLGFA)
Section 18(1)(a) 168
Section 18(2) 168
Section 28(1) 248
Union of South Africa Act, 1909 (the South Africa Act or
the 1910 Union Constitution) 5, 9, 10, 40, 41, 53, 251
Section 35 11
Section 137 11
Section 147 10
Section 152 11
Water Services Act 108 of 1997
Section 4(1) 682
Section 4(3) 682
Section 9 681
Welfare Laws Amendment Act 106 of 1997
Section 3 686
FOREIGN LEGISLATION
CANADA
Charter of Rights and Freedoms 350, 362
Article 1 349
Constitution Act (1982)
Part 1 349
Indian Act 1970 511
Conventions, covenants and treaties
Additional Protocol to the American Convention on
Human Rights in the area of Economic, Social and
Cultural Rights (Protocol of San Salvador) 1988 676
African Charter on Human and People’s Rights 676
Article 2 676
Article 4 676
Article 10 506
Article 14 676
Article 16 676
Article 18(1) 676
Article 21 676
Article 24 676
Convention on Collective Bargaining 1981 660
Convention on the Elimination of All Forms of
Discrimination against Women 1979
Article 3 676
Articles 10–14 676
Convention on the Freedom of Association and
Protection of the Right to Organise 87 of 1948 324,
637, 660
Convention on the Rights of the Child 1989
Article 4 676
Article 6(2) 676
Article 19 676
Article 20 676
Article 24 676
Article 26–29 676
Article 31 676
Convention on the Right to Organise and Collective
Bargaining 98 of 1949 324, 637, 660
Declaration of Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities
Article 2 506
Article 2(2) 506
European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (European
Convention on Human Rights) 43, 349, 362
European Social Charter 1961 676
International Covenant on Civil and Political Rights
(ICCPR) 322
Article 22 506
Article 27 506, 507, 512
International Covenant on Economic, Social and Cultural
Rights 1996 (ICESCR) 322, 675, 676, 677
Treaty between the Allied Powers and Poland
Article 7 519
Universal Declaration of Human Rights 1948 (Universal
Declaration)
Articles 22–26 676
FRANCE
Constitution of the Fifth Republic 199
Declaration of the Rights of Man and Citizen 322
GERMANY
German Basic Law for the Federal Republic of Germany
(Constitution) 49, 50, 51, 269
Article 1 50, 58
Article 8 553
Article 8(1) 552
Articles 20–37 52
Article 20 50, 58
Article 20(1) 50
Article 21 477
Article 23 50
Article 28 50, 52
Articles 38–49 52
Articles 50–53 52
Article 50 136
 Articles 54–61 52
Article 63 52
Articles 64–65 52
Article 79(3) 50, 58
Articles 92–104 52
Article 93 52
KENYA
The Constitution of Kenya, 2010
Item 23 in Schedule 6 225
LATVIA
Constitution of Latvia 1992
Section 109 675
SPAIN
Constitution of Spain, 1931 322
TURKEY
Anti-Terror Act 3713 of 1991 519
UNION OF SOVIET SOCIALIST REPUBLICS
Constitution of the Union of Soviet Socialist Republics,
1936 322
UNITED KINGDOM
British or Westminster Constitution 3, 42
Colonial Laws Validity Act, 1865 10
Human Rights Act 43, 475
Statute of Westminster, 1931 10, 11
UNITED STATES OF AMERICA
Bill of Rights 322, 473
Constitution 28, 45, 46, 47, 48, 49, 63, 69, 349, 487, 499,
681
First Amendment 532
Tenth Amendment 45
analogous ground: A ground of discrimination, such as HIV status,
not explicitly mentioned in the Constitution, but sufficiently similar
to the grounds mentioned in the Constitution because it also deals
with different treatment of people who have suffered past
discrimination, prejudice or marginalisation because of their
membership of the group.
apartheid: A system of absolute racial segregation and political and
economic discrimination applied against non-European groups in
the Republic of South Africa by the white minority. Grand
apartheid envisaged that white South Africans would govern the
vast majority of the South African territory while black South
Africans would be provided with independent or semi-independent
homelands in which they would be ‘allowed’ to exercise political
rights.
apex court: The highest court of law in a country which usually has
the final say on any matter of law. A court can be an apex court for
certain subject matters like constitutional issues only (as is the
case in South Africa) or it can be the apex court for all legal issues
(as is the case in the US).
authoritarian system: A system of government that favours a
concentration of power in a leader, a political party or an elite who
are not democratically elected by the majority of the people, are
not accountable to them and do not rule in their best interest.
autonomy: The ability to make decisions freely about your life as an
individual without being forced to do so by your family, your
community or other cultural or religious institutions.
bicameralism: The legislative system which has two distinct houses
of the legislature whose members are elected or appointed in two
 distinct ways to serve different interests. The houses are jointly
tasked with fulfilling the various tasks of the legislature, including
the passing of legislation which usually requires the support of a
majority of members from both houses of the legislature to
become law.
bifurcated state: A state in which different systems of government
apply to different people within the same territory, based on the
race, ethnicity, language or other characteristics of the governed.
Bill: A draft law that the legislature is discussing and considering.
Once the President duly passes and signs the Bill, it becomes an
Act of the legislature.
blue rights: The collective name for a group of human rights often
distinguished (somewhat arbitrarily) from other types of rights on
the basis that they are first generation rights consisting largely of
civil and political rights.
branch of government: The name given in constitutional theory to
the three pillars of government usually distinguished from each
other when discussing the separation of powers doctrine. These
three pillars are the legislature, the executive and the judiciary.
burden of proof or justification: The question of which party has to
provide evidence to prove or disprove relevant facts and what
standard will be used to decide whether the party has managed to
prove or disprove the relevant set of facts.
case law: The binding legal principles developed by courts when
handing down judgments on the interpretation and application of
statutes, common law or customary law.
certification process: The process which required the
Constitutional Court to test the final Constitution to determine
whether it complied with the 34 Constitutional Principles contained
in the interim Constitution.
checks and balances: The concept closely associated with the
doctrine of separation of powers which envisages that each of the
three branches of government (the legislature, the executive and
the judiciary) will act as a check (or brake) on the exercise of
power by the other two branches to prevent the abuse of power
and to ensure accountable government.
citizenship: The status acquired by individual persons formally
associated with (or linked to) a state and consequently who have
certain rights and duties in relation to the state. These rights and
duties include the right to live and work in the country and to
obtain a passport from the state. A person with citizenship in a
state is called a citizen of the state.
civil and political rights: The collective name for a group of human
rights often distinguished (somewhat arbitrarily) from other types
of rights such as social and economic rights on the basis that they
are first generation rights as they emerged early in the
development of human rights. This set of rights includes rights
such as the right to vote, freedom of speech and assembly,
freedom of religion and the right to equality.
coalition government: A government formed jointly by the elected
representatives of two or more political parties, usually when none
of the parties had obtained a majority of more than 50% of seats
in the legislature. The government then governs according to
principles set out in a coalition agreement concluded by the
parties which enter the coalition.
collective accountability: The principle that each member of the
executive is accountable for the decisions and actions of all other
members of the executive and should, hence, not publically
criticise the statements or actions of fellow members of the
executive. This principle is based on the assumption that the
members of the executive branch of government act as a team
and approve all important decisions of the executive.
colonialism: The establishment, maintenance, acquisition and
expansion of colonies in one territory by people from another
territory. It is a process whereby an economically and militarily
powerful government claims the right to govern the people of
another territory, imposing its language, values and government
structures on the colony and establishing an unequal, exploitative
relationship with that colony.
common law: The set of legal rules and principles not contained in
legislation duly passed by the legislature, but rather inherited from
 the colonial powers and which are continuously being developed
and enforced by the judiciary.
conscience: The awareness of a moral or ethical aspect to one’s
conduct together with the urge to prefer right over wrong,
regardless of whether that awareness stems from religious beliefs
or from ethical commitments not related to religious beliefs at all.
constitutional damages: Where a court finds that a person or
institution has infringed the constitutional rights of an individual
and (in the absence of other appropriate remedies) orders the
person or institution to pay a sum of money to the aggrieved party
to remedy the constitutional infringement.
constitutional democracy: Also known as a liberal democracy, this
is a common form of representative democracy in which citizens
take part in regular, free and fair elections in a competitive political
process but a constitution sets out the limits of the powers to be
exercised by those representatives elected to represent the
people.
contextual analysis: The opposite of considering a legal question in
the abstract as if the surrounding circumstances prevalent in a
society are irrelevant. Contextual analysis takes into account the
differences in the economic position as well as the social status of
individuals and the way in which the society is structured to
privilege some and disadvantage others.
counter-majoritarianism: The conceptual difficulty associated with
the enforcement of the provisions of a supreme constitution by the
judiciary. This difficulty arises because unelected judges without a
mandate from voters are empowered to thwart the will of the
democratically elected legislature and executive by declaring
invalid their actions, thus acting in a counter-majoritarian manner.
customary law: Traditional common rule or practice that has
become an intrinsic part of the accepted and expected conduct in
a community, is enforced by that community and can also be
changed over time by that community. In South Africa, customary
law usually refers to the laws developed and applied by
indigenous peoples and is contrasted to the common law imposed
by colonial rulers.
damages: the sum of money a court orders a person or institution to
pay to somebody to compensate for the financial or emotional
harm or ‘damage’ suffered by the aggrieved party because of
actions taken by the person or institution ordered to pay the
damages.
delegation of legislative authority: Where a legislature (parliament
or provincial legislature) entrusts the power it originally had to
pass primary or subordinate legislation to another body which is
then empowered legally to pass the said legislation despite not
originally having been entitled to do so.
developing the common law: A process through which judges,
hearing specific cases, continuously revisit the general principles
of the common law and adapt these rules to ensure that they are
in line with the general norms embodied in the Bill of Rights.
dialogic model of the separation of powers: The idea that the
tension between the legislature, executive and judiciary, arising
from the separation of powers between them, can be resolved by
envisaging the relationship between these three branches as one
in which a structured conversation shapes the relationship
between the branches.
direct discrimination: Where a rule or policy explicitly distinguishes
between groups of people to the detriment of one group, based on
either a ground listed in section 9(3) of the Constitution or on a
similar analogous ground.
disputes of interest: Such disputes arise in the labour law context
but, unlike other labour disputes, they are not based on any
existing right. Instead, employees or their unions approach the
employer to establish a new right. If the employer does not want
to give employees what they want and the matter remains
unresolved, then the employees may exercise their right to strike
after following the appropriate procedures.
diversity: Diversity refers to the fact that not all individuals have the
same cultures, languages or religious beliefs, creating a diverse
population whose differences must be accommodated without
harming others.
divided model of federalism: A model of federalism in which the
Constitution strictly divides the subject matters in respect of which
policies and laws may be made by each sphere of government.
Each level or sphere of government, therefore, has its own
exclusive powers and there are very few, if any, concurrent or
shared powers.
doctrine of objective invalidity: Also referred to as the doctrine of
objective unconstitutionality, this is the principle that any
legislative provision or action which is in conflict with
the Constitution is assumed to be invalid from the moment that the
conflict first arose. When a court confirms the unconstitutionality
and hence invalidity of the legislative provision or action, it will
automatically be invalid retrogressively from the moment the
conflict arose unless the court orders otherwise.
electoral system: The mechanism through which the number of
votes cast by voters for each political party is translated into the
number of seats for each of the parties in the legislature. Different
electoral systems produce different levels of representation for
different parties in the legislature.
equitable: A requirement that different institutions, beliefs or
practices must be treated fairly, but excluding the requirement that
they must be treated in an identical fashion.
final Constitution: The Constitution finally adopted by the
democratically elected Constitutional Assembly in 1996 in terms of
which South Africa has been governed since 1997.
first generation rights: See the definition for ‘civil and political
rights’.
formal equality: The idea that individuals are born free and equal
and that the law should treat people the same, regardless of their
personal circumstances, their history, their social and economic
status, and whether they have been discriminated against in the
past or still face discrimination in the present. The concept
explicitly denies the need to take into account the social and
economic context or the differences in power, status and
opportunities between individuals or groups of individuals when
judging whether the equality injunction has been breached or not.
general administrative law: The principles of administrative law
that are applicable to all administrative entities, as opposed to
specific administrative law which applies to specific areas such as
education, the environment, the police, the revenue service and
so on.
good faith: The presumption that a person (in constitutional law
often a public official exercising public power) will act in an honest
and fair manner and not out of spite or in an arbitrary, capricious,
dishonest or corrupt manner.
green rights: Also sometimes (somewhat loosely) referred to as
third generation rights. These are a set of rights that emerged
recently (towards the end of the twentieth century) and are aimed
at protecting society more broadly. The rights include the right to
self-determination, the right to development and the right to a
healthy environment.
guardian of the Constitution: Normally refers to the judiciary
whose task it is to interpret and enforce the Constitution and
hence to guard against breaches of the Constitution.
heterogeneous: Made up of different parts. In the context of
constitutional law, it refers to the fact that there are many different
people from different races, cultures, languages and social and
economic backgrounds living in South Africa.
horizontal application: Traditionally, a constitution only binds the
state and prohibits it from infringing on the rights of private
individuals and institutions (and is said to apply vertically only).
The South African Constitution applies horizontally as, in certain
cases, it also binds private individuals and institutions and
prohibits them from infringing on the rights of others.
horizontal dispute: A legal dispute between private parties (in other
words, a dispute in which state institutions are not involved)
regarding the scope and content of the duties imposed on such a
private party by any of the rights in the Constitution.
human rights: A set of norms and standards contained in a bill of
rights or international human rights treaty aimed at protecting the
human dignity and other fundamental interests of individuals,
 which binds the state (and sometimes other parties) and is usually
enforced by independent courts or tribunals.
in limine: Literally, ‘at the threshold’, this Latin term refers to a
motion made before a trial begins which asks the court, for
example, to rule on a preliminary legal point or on the exclusion of
certain evidence.
incidental power: Usually refers to powers that strictly speaking fall
outside the matters over which a particular branch in a specific
sphere of government has legislative or executive authority, but
which are so closely connected to the effective performance of its
functions that they are considered to be a part of the matters over
which the body has authority.
indigenous populations: Ethnic groups who lived in a territory
before the arrival of a colonising power. They are groups of people
whose members share a cultural identity that has been shaped by
their geographical region and by their experiences of oppression.
indirect discrimination: Different treatment either on grounds listed
in section 9(3) or on analogous grounds where the ground for the
different treatment is based on a seemingly ‘neutral’ factor (such
as a person’s height or where a person lives), but where the
differentiation disproportionately affects a group listed in section
9(3) or a group analogous to section 9(3).
individual accountability: The principle that individual members of
the executive (members of the cabinet at national level) are
responsible for their own portfolios and are accountable for what
occurs in their departments.
integrated model of federalism: Where some subject matters are
allocated exclusively to one level or sphere of government, but
most powers are concurrent or shared and where the subject
matters in respect of which policies and laws may be made are
thus not strictly divided between the different levels or spheres of
government.
interim Constitution: The South African Constitution agreed to by
the undemocratic MPNF in 1993, according to which South Africa
was governed between 1994 and 1996 while a final Constitution
was being negotiated. It contained the 34 Constitutional Principles
 with which the final Constitution had to comply and prescribed the
process for the adoption of the final Constitution.
judicial authority: The term for the power given to judges that
allows them to hear a case and to decide in favour of one party.
judicial independence: The notion that judges should be free from
interference by the other branches of government or private
parties and which is achieved by providing institutional
safeguards.
judicial review: The process through which judges review the
constitutionality of actions taken by the legislature, executive or
private parties and declare such actions invalid if they are in
conflict with the Constitution.
judiciary: One of the three branches of government, staffed by
judicial officers and led by the Chief Justice.
jurisdiction: The legal authority of members of the judiciary to hear
and determine judicial disputes in a specific geographical area or
on specific subject matter.
juristic person: An artificial entity through which the law allows a
group of natural persons to act as if they were a single composite
individual for certain purposes. This legal fiction does not mean
these entities are human beings, but rather that the law
recognises them and allows them to act as natural persons for
some purposes − most commonly lawsuits, property ownership
and contracts.
justiciability: Concerns the limits on legal issues over which a court
can exercise its judicial authority and thus refers to factual or legal
questions capable of being decided by a court.
justiciable: In constitutional law, a matter is justiciable if courts can
apply the Constitution to the factual or legal dispute and can
declare invalid action in conflict with the Constitution.
law-making power: The power of an institution such as a
legislature, derived from a constitution, to pass valid law.
limitation of rights: When law or conduct infringes on one or more
of the rights protected in the Bill of Rights, this is called a limitation
of the right. A limitation can be justified in terms of section 36 (and
 is then constitutionally valid) or it can be unjustified (and is then
unconstitutional).
material mistake of fact: Ignorance or forgetfulness of the
existence or non-existence of a fact important to the creation of a
legal obligation which is so central to the dispute that it negates
the establishment of a legal obligation.
material mistake of law: Ignorance or forgetfulness of the existence
or non-existence of a legal rule important to the creation of a legal
obligation which is so central to the dispute that it negates the
establishment of a legal obligation.
meaningful engagement: A duty imposed by courts on parties to a
dispute that requires them to talk to each other with a view to
solving the dispute.
mere differentiation: The distinctions made by the law between
groups of people where these distinctions are not based on
harmful stereotypes or other problematic personal attributes or
characteristics (like a person’s race, sex or sexual orientation), but
rather on the basis of historically harmless criteria.
nation state: A political unit consisting of an autonomous state
inhabited predominantly by a people sharing a common history.
National Assembly: The lower House of the national Parliament of
South Africa comprising 400 members elected in a general
election through the system of proportional representation to
represent the interests of the whole electorate.
National Council of Provinces: The second House of the national
Parliament of South Africa comprising 10 delegates from each
province, primarily representing the interests of provinces in the
national law-making process.
natural person: A human being as opposed to a legal entity and
who is treated as the bearer of rights and duties.
negative duties: The legal duties to refrain from acting in a manner
in conflict with provisions in the Constitution, often contrasted with
positive duties which require those bound by the Constitution to
act in a certain manner to give effect to the provisions of the
Constitution.
norms: Values or principles that direct proper, or in constitutional
law, legally permissible behaviour in a society.
notional severance: A technique of interpretation that focuses on
the words of a legal provision and, rather than eliminating specific
words in the provision, interprets the provision, usually by
narrowing its scope and by indicating circumstances to which the
provision is not applicable to ensure it will be interpreted in
conformity with the Constitution.
operational provisions of the Bill of Rights: The set of provisions
in the Constitution that indicates whom the rights in the Bill of
Rights binds, who is protected by the provisions of the Bill of
Rights and how these provisions must be applied.
organ of state: Any department of state or administration in the
national, provincial or local sphere of government; or any other
functionary or institution that exercises a power or performs a
function in terms of the Constitution or a provincial constitution; or
that exercises a public power or performs a public function in
terms of any legislation. However, it does not include a court or a
judicial officer.
par delictum rule: The rule that a party must come to court with
‘clean hands’ and thus denies the aid of the court to parties whose
conduct was wrongful.
pardons: Where a person has been convicted of a crime and the
President, exercising a Head of State power, decides to excuse
the crime, thus wiping the slate clean and allowing the convicted
criminal to live as if the conviction had never occurred.
Parliament: In South African constitutional law it is the collective
name for the National Assembly and the National Council of
Provinces, the two Houses of the national legislature empowered
jointly to pass legislation and to fulfil the other duties of the
national legislature.
parliamentary privilege: The rule that Members of Parliament have
legal immunity that protects them against civil or criminal liability
for actions done or statements made in the course of their
legislative duties.
parliamentary supremacy: This is also called parliamentary
sovereignty or legislative supremacy and is a concept in the
constitutional law of some parliamentary democracies. With
parliamentary sovereignty, a legislative body (usually the
democratically elected parliament) has absolute sovereignty,
meaning it is supreme to all other government institutions,
including the executive and the judiciary. This means that the
legislative body may change or repeal any previous legislation
and is not constrained by the constitution in what legislation it can
pass.
participatory democracy: The idea that the public has a right and
duty to participate in public affairs, including discussions about the
passing of legislation and the formulation of government policies.
patterns of disadvantage: The deeply entrenched, historically
created and continuing social and economic exclusion
experienced by black people, women, gay men and lesbians and
other marginalised groups in society.
plenary law-making power: The complete power, bestowed by the
constitution on the relevant body, to pass laws on a particular
topic with no limitations.
pluralism: A condition or a state in which numerous distinct ethnic,
religious or cultural groups are present and in which the beliefs
and practices of individuals who belong to such groups are
accommodated.
polygynous marriage: A marriage conducted in terms of customary
law rules in which a husband is permitted to be married to more
than one wife at the same time.
portfolio committees: The various committees of the National
Assembly tasked with processing legislation and overseeing the
implementation of legislation relating to the portfolio of each
member of the Cabinet.
positive duties: The legal duties which require those bound by the
Constitution to act in a certain manner to give effect to the
provisions of the Constitution, often contrasted with negative
duties to refrain from acting in a manner in conflict with provisions
in the Constitution,
primogeniture rule: The rule of inheritance that the first-born male
child has the right to inherit to the exclusion of other children.
principle of authority: The ideal that a functionary must act within
his or her power, thus that a functionary can only exercise public
power if authorised to do so by the law.
principle of legality: The legal ideal that requires all exercises of
public power to be rational, non-arbitrary and authorised by law
that is clear, ascertainable and non-retrospective.
principle of rationality: The legal ideal that the exercise of public
power must be for a legitimate purpose and that there should be a
rational link between the purpose for which the power is exercised
and the action taken.
principle of subsidiarity: The rule that where legislation gives
effect to a constitutional right, a litigant must, where possible, rely
on the provisions of the legislation and cannot rely directly on the
right concerned.
prior restraints: Judicial suppression of material before it can be
published or broadcast on the grounds that it is libellous or
harmful.
proportional representation: The principle of electoral law that
there should be a direct correlation between the percentage of
votes cast for a specific political party and the percentage of seats
allocated to that party in the legislature.
proportionality: A legal principle used to decide how the right
balance should be struck between conflicting interests to
accommodate the various interests optimally, usually in a fair and
just manner. In limitation analysis this means, broadly speaking,
that the interests of the state and of society must be weighed
against the interests of those whose rights are being infringed and
must be done in a manner that is acceptable in an open and
democratic society.
prosecuting authority: The body that makes decisions about who
to prosecute and who not to prosecute for the commission of an
alleged offence and is responsible for such prosecutions.
public administration: The collective name for the group of
individuals employed by the state to implement government
 policies and programmes, including employees of all organs of
state.
public service: The collective name for those persons who work for
the national and provincial government departments.
pure proportional representation electoral system: The electoral
system in which voters vote for political parties and not individual
candidates and in which each party is allocated seats in the
legislature in direct proportion to the percentage of votes cast for
that party in the election.
quasi-federal system: A system in which the power to pass and
implement legislation is distributed between the national
government and provincial governments but in which the power of
provincial governments is limited.
rational connection: Identifying the purpose to be achieved by a
legal provision on the one hand and the nature of the legal
provision seeking to achieve that purpose on the other, and asking
whether there is a rational link between the two.
rationality: A legal test that is not aimed at enquiring into the
wisdom or reasonableness of the impugned legal provision, but
rather asks, first, whether the legal provision aims to achieve a
legitimate government purpose and, second, whether there is a
rational relationship between the legal provision and the purpose
sought to be achieved by it.
reading down: The principle of legal interpretation which requires
that ordinary legislation is interpreted in line with the spirit, purport
and object of the Bill of Rights if the words are reasonably capable
of such an interpretation or are not unduly strained.
reading in conformity: The principle of legal interpretation requiring
that the courts must prefer interpretations that fall within
the boundaries of the Bill of Rights over those that do not,
provided that such an interpretation can be reasonably ascribed to
the provision.
reasonable accommodation: The need of both private and public
institutions to take reasonable steps – within what is financially
affordable and practically possible – to accommodate the
 practices, beliefs and ways of living of diverse groups of people to
ensure their full and equal participation in society.
rechtsstaat: Requires that all laws and state conduct must comply
with the Constitution and demands that the law and conduct of
state actors must strive to protect freedom, justice and legal
certainty.
red rights: Also referred to as second generation rights and usually
thought to include social and economic rights.
regular intervention: The power of the executive at national or
provincial level to intervene in the affairs of the province or
municipality respectively when a province or municipality cannot
or does not fulfil an executive obligation in terms of the
Constitution or legislation.
reparation: Making amends for past injustice by providing those
disadvantaged by past unjust acts or laws with opportunities,
benefits and rewards to compensate them for the loss incurred by
them because of the unjust actions of others in the past.
representative democracy: The notion that the voters are
represented by elected representatives serving in legislatures and
the executive.
retrospective invalidation of legislation: Where, because of the
doctrine of objective invalidity, legislation is declared invalid and
renders the legislation invalid from the moment the clash with the
Constitution arose.
rights disputes: Disputes in labour law regarding the the
interpretation and application of existing rights which are generally
arbitrable through the bargaining councils or through the labour
courts.
rule of law: An evolving constitutional principle enforceable by
courts and closely related to the principle of legality and the
rechtsstaat which, at a minimum, requires the legislature and the
executive in every sphere only to exercise power and perform
functions if authorised to do so by law and then only in a rational
manner.
rule of stare decisis: The basic rule applicable in common law
jurisdictions that a court is bound by the legal precedent
 established by court judgments of a court at the same or higher
level of authority.
second generation rights: Refer to rights which were developed
after the Second World War, usually social and economic rights.
separation of powers: The principle that there must be some
separation of function and, in some cases, personnel of the three
branches of government.
severance: The remedy which allows a court to delete those words
or phrases from the provision which renders the provision
unconstitutional to fix the unconstitutionality of a legal provision.
social and economic rights (also socio-economic rights): Also
generally referred to as second generation rights, the set of rights
that ensures that the basic social and economic needs of
individuals are met.
specific administrative law: the principles of law that are applicable
to discrete areas of administration, for example education, the
environment, the police, the revenue service and so on.
spirit, purport, and object of Bill of Rights: The human rights
based norms and values that are derived from the specific
substantive provisions of the Bill of Rights.
standing: The right of either an individual or an organisation to bring
a case to a specific court and to have that case heard in that
court.
state: An organised political community occupying a certain territory
and whose members live under the authority of a constitution. The
state is therefore a far broader concept than the government.
statutes: Legislation passed by the duly authorised legislature on a
particular topic.
strict party discipline: The principle that elected representatives of
a political party are required to obey and follow the decisions
made by that political party on a specific policy or legal issue.
structural interdict: A remedy handed down by a court ordering the
government to take certain steps and to report back to the court at
regular intervals about the steps taken to comply with the
Constitution.
substantive provisions of the Bill of Rights: The provisions
relating to the protection of specific rights.
suspension of an order of invalidity: A remedy in which the court,
after declaring a legal provision constitutionally invalid, suspends
that order, allowing the provision to remain in operation, usually
for a set period of time to allow the legislature to fix the invalidity
of the provision.
teleological interpretation: An interpretative method that asks what
the purpose of a specific provision is – why was it included in the
Constitution and formulated in the way that it was – to assist with
determining the exact meaning of that provision.
tenure: The right to keep a job for life or for a fixed period of time.
third generation rights: See the definition of ‘green rights’.
ubi ius ubi remedium: The notion that when a person’s right is
violated, the victim will have an equitable remedy under law.
ultra vires: Describes actions taken by government bodies or
private institutions that exceed the scope of power given to them
by law.
values: Important and lasting beliefs or ideals contained in a
constitution and/or shared by the members of a culture about what
is good or bad and desirable or undesirable.
vertical dispute: A legal dispute between the state and an
individual.
vote of no confidence: When the majority of members of a
legislature, having decided to stop supporting the government of
the day, decide to unseat that government by supporting a vote to
that effect.
Westminster system: Also called a parliamentary system, this
system of government is based on the British model in which the
members of the executive branch (usually the Prime Minister and
his or her Cabinet Ministers) are appointed from among the
Members of Parliament and obtain their democratic legitimacy
from the Parliament. They are members of, as well as
accountable to, that body, meaning that the executive and
legislative branches are intertwined.
Page numbers in italics point to diagrams and tables
1994 election results, final 23
A
abdication of power to make decision by administrator 602
abuse of fundamental rights by private persons 330–331
access to information, right to
importance of 619
introduction 619–621
regulation of 625–626
see also Promotion of Access to Information Act
access to parliament, a right not a privilege 115–116
accommodation of diversity, and associational rights 472
acting president 176–177
adequate reasons, meaning 618
administrative action
reasonable 604–605
right to be given reasons for 615–618
what constitutes? 593–599
administrative review process, a substantive element 605
administrator’s abdication of power to make decision 602
affirmative action (redress measures): section 9(2) 433–443
Afri-Forum judgment, critique 548–549
amending founding provisions of the Constitution 58
Appellate Division see Supreme Court of Appeal (SCA)
assembly, right to 552–553
assigned municipal powers 298–299
assignment of legislative and executive powers 298
associational rights, issues raised by accommodation of
diversity 472
atheism see right not believe in any god
attacking constitutionality of a legislative provision
different treatment, framework 431
introduction 429–431
mere differentiation: section 9(1) 431–433
redress measures (Affirmative Action) 433–443
Auditor-General 264–265
B
balancing rights 479–482
bicameralism 108–109
bifurcated state, and the Union of South Africa 9–15
Bill of Rights
classifying of rights 322–323
and customary law development 344–345
in Interim Constitution did not apply directly to horizontal
disputes 336
juristic persons 324–326
juristic persons entitlement to rights, controversy 326
natural persons 324
persons bound by
common and customary law, indirect application to 341–
345
and common law development 342–343
direct horizontal application 336–338
direct vertical application 331–336
expansive approach 340–341
indirect application 338–345
 legislation, indirect application to 338–341
principle of avoidance or subsidiary 338–339
persons entitled to claim rights 323–329
president, limiting power of 183–185
standing to enforce rights 326–329
structure of litigation 320–323
Bills passed by parliament in 1999 and 2000 163
Black Administration Act of 1927 (BAA) 13, 247–248
Black voting rights in Cape 10, 11
Blue Moonlight, unintended consequences 703
bottom-up method for Schedules 4 and 5 296–297
broadcasting
of court proceedings 539–541
regulation 544
budgetary process 308–310
Bundesrat, National Council of Provinces (NCOP),
resemblance to 136
burden of justification 380–382
C
cabinet 194–199
campaign funds, disclosure by political parties of sources
567
Cape Colony, progress to self-government 6
case law, scarcity impoverishes socio-economic rights
jurisprudence 677
censorship and right to freedom of expression 528
central bank 310
Chapter 9 institutions, independence 258–264
checks and balances within separation of powers 61
chief and deputy-chief justice, appointment process 210
chiefdoms 7–8
chiefs see traditional leaders
citizens living abroad, right to vote 129–130
citizens working abroad, right to vote 575–576
civil liability of judges, limitation 244–245
closed list proportional representation vs first-past-the-post
125–127
CODESA, MPNF and the two-stage transition 19–23
collection of revenue 304–306
collective bargaining, right to engage in 655–661
colonial conquest era 5–15
Coloured voters, removal from the common roll 11
commissions of inquiry 633–634
committees
National Assembly (NA) 134
National Council of Provinces (COP) 141–142
relationship between executive members and ordinary
members 149–150
common law
and Bill of Rights, persons bound by 342–343
relationship with PARA and Constitution 584–586
complaints against judges, duty of JSC when considering
242–243
compulsory requirements for procedurally fair administrative
action 611–612
condonation, when is it permissible? 312
conflicts between national and provincial spheres, resolution
287–290
Constitution of South Africa
affirmative state duties 28–29
certification process 25
direct democracy, extent of provision for 88–89
drafting and adoption 23–26
 duties iro socio-economic rights: section 7(2) 671–674
floor crossing amendment 91–92
historic self-consciousness 29
horizontal application 29
interpretation 30–33
limiting power of president 182–183, 186–187
multiculturalism 29
non-rights provisions, use to protect socio-economic rights
670
participatory governance 29
relationship with PARA and common law 584–586
and right to engage in collective bargaining 657–661
section 23(5), legally enforceable duty to bargain? 659–
661
social rights and substantive concept of equality 28
transformative nature 26–30
transformative, need for 30
unfair labour practices 645–646
unique birth 26
uniqueness with regard to socio-economic rights 667
Constitutional Court
interpretative approach 31
jurisdiction 213–221
reasonableness standard, different elements 712
SANDF ban on trade unions decision 646–647
SCA, does it still have a meaningful role to play? 221–222
and separation of powers concerns in socio-economic
rights claims 688–689
constitutional damages 409–412
social grants as form of 412
constitutional democracy 95–96
constitutionalism
 co-operative federalism 59–60
as descriptive doctrine 40–41
era of constitutional supremacy 54–57
German model 49–52
models of 41–52
nature of 38–40
as prescriptive doctrine 41
in South Africa, overview 52–60
supremacy of the constitution era 54–60
unique nature in South Africa 39–40
United States model 44–49
value-based system 57–59
Westminster model 42–44, 53–54
constitutional principles for division of powers between
spheres of government 268–277
constitutional remedies
constitutional damages 409–412
declarations of invalidity 393–400
declarations of rights 406
interdicts 406–409
introduction 389–393
limiting retrospective effect of orders of invalidity 400–402
meaningful engagement 413–415
nature of 393
participatory democracy, meaningful engagement as a
means to 414–415
relief not afforded to successful litigants 390–391
social grants as form of constitutional damages 412
state failing to obey court orders 408–409
suspension of orders of invalidity 403–406
constitutional supremacy
in German constitutional model 49–50
 vs parliamentary supremacy 49
constitution-making process, public-participation programme,
influence on? 24
constitutions as living documents, requiring interpretation 4
contextual approach to procedural fairness 612–613
co-operative federalism 59–60
co-operative government, principles 271–274
core activities of a church and other activities 494–495
counter-majoritarian dilemma 77
judicial review, arguments for 75–77
non-technical ethics, opening of possibility of 76–77
public acceptance of court’s decision sufficient? 74–75
court orders, state failing to obey 408–409
court proceedings, access to and broadcasting 539–541
courts’ power of review, justification for 47–48
courts, right of access
commissions of inquiry 633–634
political issues 631
positive obligation on the state 632
prohibition of self-help 632–633
threshold question 630–631
cultural and religious communities, rights
individual nature of 504–505
international protection of cultural liberties 505–506
other rights, qualifying and enhancing 504–505
sections 30 and 31 of Constitution, scope and content
507–515
cultural association vs unfair discrimination rights 509–510
customary courts see traditional courts
customary law, living, and new judicial structures 208–209
D
declarations of invalidity
introduction 393–395
limiting retrospective effect of orders of invalidity 400–402
notional severance 397–398
qualified retrospective orders 402
reading down 395–396
reading in 398–400
severance 396–397
suspensions 403–406
declarations of rights 406
democracy
conceptions 86–87
constitutional 95–96
direct 87–89
participatory 93–95
representative 89–93
demonstrations and assemblies, distinguished 553
deputy president
president’s power to appoint or dismiss 184
role 199
deputy president and the rest of the cabinet
appointment and removal 194–196
powers 196–199
descriptive doctrine 40–41
determining when property is state property 305–306
dialogic model of separation of powers doctrine 104–106
Diceyean conception of rule of law 79
differentiation
and discrimination 425–426
vs discrimination 445–449
different treatment, framework for challenging 431
dignity-based jurisprudence and right to equality 427–428
Dingiswayo, King 7
direct democracy 87–89
direct horizontal application of Bill of Rights 336–338
direct vertical application of Bill of Rights 331–336
disabled people, principle of reasonable accommodation 456
disclosure by political parties of sources of campaign funds
567
discrimination
and differentiation 425–426
vs differentiation 445–449
hidden forms 448–449
non-statutory, imposed 452–456
disparities in price, dealing with 313
dissident beliefs, freedom of association indispensable where
group holds them 474
distribution of revenue 306–308
District 6 removals 698–699
diversity, accommodation of, and associational rights 472
diversity rights
freedom of association 469–482
introduction 468–469
language rights 516–526
division of powers
fiscal 303–304
between national and provincial spheres of government
277–290
(see also local government)
between spheres of government, general principles 268–
277
divorce proceedings, access to 541–542
dominant party democracy 33–36, 93
duties of state with regard to socio-economic rights 671–674
duty to promote and to fulfil 672, 707–720
introduction 707–708
reasonableness review 708–716
duty to protect 672, 704–707
duty to respect 671, 697–704
E
education in official language of choice, right to receive 520–
523
efficient running of country vs strict enforcement of fair
procedures 608–609
election and term of office of president 173–177
election results
1994, final results 23
2009 34
elections, free, fair and regular as political rights 567–569
electoral system, does it weaken the power of the
legislature? 66–67
eligibility for election to National Assembly (NA) 130–131
enforceable legal socio-economic rights, role of HRC 678
enforcement of statutory duties against the state 680
equality and human dignity 426–429
equality and non-discrimination
differentiation and discrimination 425–426
dignity-based jurisprudence and right to equality 427–42
formal vs substantive equality, distinguishing 424–425
human dignity and equality 426–429
non-statutory imposed discrimination 452–456
PEPUDA 452–456
reasonable accommodation principle, in disability field 456
right (see also attacking constitutionality of a legislative
provision)
 substantive equality vs non-discrimination 420–425
values underlying right to equality 426–429
equality of opportunity or of outcomes as aim of affirmative
action 435–437
era of constitutional supremacy 54–57
everyone, meaning 636–637
executive
accountability to parliament, extent of 147
legislative and judicial actions 586–589
legislature holding accountable? 64–65
parliamentary oversight of its authority 148–150
parliament delegating legislative powers to 163–167
parliament holding accountable 144–147
president as head of 177–182
and separation of powers 68–69
and socio-economic rights 678–684
see also president
expansive approach to principle of reading in conformity with
Bill of Rights 340–341
F
factual disputes and disputes about points of law 216–217
fair procedures, strict vs efficient running of country 608–609
financial affairs 303–314
financial security of judges 243–244
first-past-the-post vs closed list proportional representation
125–127
fiscal federalism 303
floor crossing amendment 91–92
formal equality vs substantive equality, distinguishing 424–
425
formal vs substantive conceptions of the rule of law 84–85
founding provisions of the Constitution, amending 58
franchise see vote, right to
Freedom Charter, extracts 16–17
freedom of assembly, demonstration, picket and petition
assemblies and demonstrations 553
assemblies, peaceful 552–553
assemblies, what sort referred to? 552
assembly right, scope and ambit 552–553
introduction 549–552
liability for damage 558–560
petitions 555–556
pickets 554–555
political mobilisation used with litigation 550–551
Regulation of Gatherings Act 205 of 1993 556–558
freedom of association
accommodation of diversity, and associational rights 472
balancing rights 479–482
indispensable where group holds dissident beliefs 474
introduction 469–472
vs justifiable exclusion of others 482
scope and content 472–475
societal interests that override 475–479
freedom of expression
censorship 528
free marketplace of ideas? 530–531
introduction 528–532
political speech, greater latitude for 532
pornography laws and De Reuck case 535
scope and ambit of right 532–535
freedom of religion, belief and opinion
core activities of a church and other activities 494–495
defining the right 490
 introduction 482–487
marriages, legislation recognising religious and traditional
501–503
polygamous marriages 503
reasonable accommodation of beliefs and practices 495–
499
religious observances in state institution 499–501
right not believe in any god 499
section 15(1) of Constitution, scope and content 487–495
section 15(2) of Constitution 499–501
section 15(3)(a)(i) of the Constitution 501–503
specific belief religious? 493
freedom of the press and other media
broadcasting, regulation of 544
court proceedings, access to and broadcasting of 539–541
divorce proceedings, access to 541–542
hate speech 544–549
interdicts to prevent publication of stories 543–544
introduction 536
Press Ombudsman 543–544
prior restraints 542–544
role of the press 536–539
Secrecy Bill 537–539
free, fair and regular elections as political rights 567–569
free marketplace of ideas? 530–531
free-market system vs social state 51–52
fundamental rights, abuse by private persons 330–331
G
German constitutional model 49–52
Ginwala Report on dismissal of NDPP, Vusi Picoli, critical
analysis 252–255
Glen Grey Act of 1894 8–9
grand narrative as an interpretative tool 32
H
hate speech
Afri-Forum judgment, critique 548–549
introduction 544–545
scope and extent 545–549
see also political speech, greater latitude
hidden forms of discrimination 448–449
High Courts 211, 223
historical-legal context of 1996 Constitution
pre-Union developments 5–9
Union of South Africa and the bifurcated state 9–15
historic legacy of parliamentary sovereignty and apartheid,
influence on judiciary 202–209
history of South Africa as an interpretative tool 32
Homelands Policy 14
human dignity
and equality 426–429
in German constitutional model 50–51
introduction 456–458
new forms of indignity 461
as a right and as a value 458–461
Human Rights Commission and socio-economic rights 678
I
impartiality of judges 225–229
incidental municipal powers 299–300
independence, judicial, test for 227–228
independence of courts
lower 245–247
 superior 224–245
traditional 247–249
Independent Electoral Commission 127–129
indigenous governance structures
different viewpoints on evaluation 8
see also traditional governance structures
indirect application of Bill of Rights 338–345
indirect discrimination 451–452
inegalitarian society and one-party dominant democracy 33–
36
interdicts, as constitutional remedies 406–409
intergovernmental co-ordination 274–277
Interim Constitution, Bill of Rights did not apply directly to
horizontal disputes 336
international and foreign law, role in interpretation of socio-
economic rights 674–677
interpretation of South African Constitution of 1996 30–33
interpretative approach of the Constitutional Court 31
interpreting a constitution, approaches to 4
invisible prejudice 447–448
J
Joint Tagging Mechanism (JTM) 157–160
judges
appointment 69–70, 229–237
civil liability, limitation of 244–245
complaints against, duty of JSC when considering 242–
243
extension of terms of office 238–240
financial security 243–244
impartiality 225–229
oath of office 237–238
 old-order, Kenyan model of vetting 225
removal from office 241–243
security of tenure 238–243
statistics per race group and per gender 235
see also judiciary
judicial enforcement of socio-economic rights
Blue Moonlight, unintended consequences 703
District 6 removals 698–699
duty to promote and fulfil 707–720
duty to protect 704–707
duty to respect 697–704
judicial, executive and legislative actions 586–589
judicial independence 70, 227–228
judicial review, arguments for 75–77
Judicial Services Commission (JSC) 230–237
complaints against judges, duty when considering 242–
243
judiciary
black or female candidates 236–237
composition in 1994 207
Constitutional Court, jurisdiction 213–221
disputes, factual and about points of law 216–217
and historic legacy of parliamentary sovereignty and
apartheid 202–209
separation of powers 69–71
structure in the 1996 Constitution 209–212
see also judges; superior courts, independence
jurisprudence of socio-economic rights seen through prism of
equality 716
juristic persons, and Bill of Rights 324–326
just administrative action, right to
introduction 581–584
 law of administrative justice a hybrid 582–583
legislative, executive and judicial actions 586–589
principle of legality 589–593
principle of subsidiarity 586
principles of legality and rationality, applying 590–591
relationship between Constitution, PAJA and common law
584–586
justifiable exclusion of others vs freedom of association 482
justification, burden of 380–382
justification for courts’ power of review 47–48
K
Kenyan system of vetting of old-order judges 225
Kliptown Charter see Freedom Charter, extracts
L
labour relations
closed shop and agency shop agreements 649–650
collective bargaining, right to engage in 655–661
defining characteristic of ‘worker’ 638–639
everyone, meaning of 636–637
fair labour practices, introduction 641–644
introduction 634–636
legally enforceable duty to bargain ito section 23(5) of
constitution 659–661
minority unions entitled to take lawful strikes? 652–655
notice of strikes, who must give? 653–655
persons in unlawful employment relationships 640–641
right of workers to participate in activities of trade unions
650–651
SANDF ban on trade unions, Constitutional court decision
646–647
 section 23 of Constitution, scope and ambit 636–641
strike, right to 652–655
trade unions, right of workers to form and join 646–650
unequal power relationship between employers and
employees 635
unfair labour practices ito Constitution 645–646
unfair labour practices ito LRA 644–645
Labour Relations Act (LRA)
exclusion of duty to bargain 656–657
and right to engage in collective bargaining 656–657
unfair labour practices 644–645
Langden Commission 9
language rights
education in official language of choice 520–523
introduction 516–519
Pan South African Language Board 525–526
parity of esteem 516–517
section 6 524–525
section 29(2), implications of expansive interpretation 523
unfair discrimination on basis of language, protection from
519–520
lawful administrative action 599–604
law-making process 156
see also passing of legislation
law of administrative justice a hybrid of old and new 582–583
Law of Lagos 79–81
legality principle 589–593
legislation, indirect application to Bill of Rights 338–341
legislative competence(s)
determining 283–287
division and demarcation between national and provincial
spheres 280–283
legislative, executive and judicial actions 586–589
legislature
holding the executive accountable 64–65
and separation of powers 65–68
and socio-economic rights 678–684
supremacy in Cape Colony 6
legitimate expectations and rights 616–617
legitimate expectations vs rights 609–610
liability for damage caused during a gathering 558–560
limitation of rights
adjucative approach of Constitutional Court, absence of
reasons 352–354
all-at-once approach, concerns regarding 365–366
apart from section 36(1) 385–386
balancing process, critique of 369
burden of justification 380–382
infringement of right by measure? 359–360
internal limitations 382–385
justification stage 360–380
limitation clause, evolution of 349–354
proportionality as base? 351
proportionality in justification enquiry, reconsidering role of
363–369
reasonable and justifiable in an open and democratic
society 363–380
relevant protected rights, content and scope 357–359
threshold enquiry 355–360
two-stage approach to 354–355
see also Section 36 in practice
limiting retrospective effect of orders of invalidity 400–402
living customary law and new judicial structures 208–209
local government
 independent authority to determine municipal boundaries
293
municipalities, powers derived from Constitution 291–292
municipal powers 295–300
objectives 291–292
structure 292–295
lower courts, independence 245–247
M
magistrates’ courts 211
jurisdiction 223–224
see also lower courts, independence
Mbeki, President, legality of decision to recall 175–176
meaningful engagement 413–415
means-end effectiveness test, reasonableness review 710–
712
media, role of 536–539
medical treatment claims and socio-economic rights 669–670
Members of Parliament
constitutional obligations vs toeing party line 112–113
powers and privileges 116–119
mere differentiation: section 9(1) 431–433
Multi-Party Negotiating Forum, CODESA and the two-stage
transition 19–23
municipalities
Municipal Electoral Act, sections 14 and 17 564–565
and national and/or provincial legislation 301
powers 291–292, 295–300
N
national and/or provincial legislation does not always prevail
over municipal law 301
national and provincial spheres of government, division of
powers 277–290
National Assembly (NA)
closed list proportional representation electoral system
123–127
committees 134
composition 122–130
described 108–109
duration, sittings and dissolution 131–132
elegibility for election to 130–131
independence of Electoral Commission 127–129
and NCOP controlled by different majority parties? 161
powers and functioning 132–134
president, power to remove from office 174–176
public involvement in legislative processes 119–122
women, representation 125
National Council of Provinces (NCOP)
Bundesrat, resemblance to 136
compositioning and functioning 134–141
described 109
factors influencing operation 138–139
and NA controlled by different majority parties? 161
procedures, internal arrangements and committees 141–
142
public involvement in legislative processes 119–122
strict party discipline, role in effectiveness 140–141
National House of Traditional Leaders 167–168
National Prosecuting Authority 249–255
Native Affairs Commission 9
natural persons, and Bill of Rights 324
non-discrimination vs substantive equality 420–425
non-statutory imposed discrimination 452–456
non-technical ethics and counter-majoritarianism 76–77
notice of strikes, who must give? 653–655
notional severance 397–398
O
oath of office, judges 237–238
one-party dominant democracy
and inegalitarian society, as context 33–36
see also dominant party democracy
openness and transparency in parliament 114–116
Orange Free State Constitution 6
orders of invalidity
limiting retrospective effect of 400–402
suspension 403–406
original municipal powers 295–297
oversight by parliament of national executive authority and
other organs of state 148–150
P
Pan South African Language Board 525–526
Parliament
access to, a right not a privilege 115–116
Bills passed in 1999 and 2000 163
committees, relationship between executive and ordinary
members 149–150
delegation of legislative powers to executive or other
legislatures 163–167
executive and ordinary members of committees,
relationship 149–150
executive, holding accountable 144–147
extent of executive’s accountability to Parliament 147
functions 142–167
 general operating rules 113–122
inability to delegate plenary law-making power to president
166–167
legislation, passing of 150–163
MPs, powers and privileges 116–119
NA and NCOP controlled by different majority parties? 161
as national forum for public consideration of issues 143–
144
openness and transparency 114–116
oversight of national executive authority and other organs
of state 148–150
parliamentary privilege and personal matters 116–117
private members’ Bills 152–155
public involvement in legislative processes 119–122
role of voters in law-making process 122
tagging of Bills 157–160
vote of no confidence in president 145–146
parliamentary privilege does not extend to personal matters
116–117
parliamentary sovereignty and apartheid, historic legacy and
the judiciary 202–209
parliamentary supremacy
vs constitutional supremacy 49
extreme version of 12–13
Republic of South Africa Constitution of 1961 53–54
South Africa Amendment Act of 1958 11–12
Union of South Africa Constitution 10
participatory democracy 93–95, 414–415
party government see political parties
passing of legislation by Parliament 150–163
petitions 555–556
pickets 554–555
Picoli, Vusi, critical analysis of Ginwala Report on his
dismissal 252–255
plenary law-making power of NA, inability to delegate to
president 166–167
political issues, and difficulties they pose to courts 631
political parties
actual power in SA system of government 196
deposits 564–565
disclosure of sources of campaign funds 567
internal discipline vs internal democracy 563–564
leaders, actual power in our system of government 196
MPs, constitutional obligations vs toeing party line 112–113
Municipal Electoral Act, sections 14 and 17 564–565
and party government 109–113
party government system 109–113
president’s power to appoint and dismiss 179–180
proportional funding unfair advantage to incumbent parties
566
regulation 564–565
rights of citizens who are members 110–111
role 562–565
state funding 565–567
strict party discipline and effectiveness of NCOP 140–141
political rights
free, fair and regular elections 567–569
introduction 560–562
political parties, regulation 564–565
right to make political choices and role of political parties
562–565
section 19 and non-citizens 562
state funding of political parties 565–567
political speech, greater latitude 532
 see also hate speech
polygamous marriages, customary principles and rules 503
positive duties, and reasonableness standard of review 708
power of provinces to impose taxes, reasons for restriction
304
power of review by US courts, justification for 47–48
Preferential Procurement Policy Framework Act 5 of 2000
314
prescriptive doctrine 41
president
Bills, assent and signing into law 162
deputy-president, power to appoint or dismiss 184
election and term of office 173–177
as head of state and head of executive 177–182
judges, role in appointing 231–232
limits on exercise of power 182–194
Mbeki, legality of decision to recall 175–176
power increased during President Zuma’s tenure? 181
power to appoint and dismiss, constrained by political party
considerations 179–180
removal from office 174–176
requirement to act rationally 189–194
rules for acting 176–177
and separation of powers 68–69
vote of no confidence in 145–146
see also deputy-president; executive
press and other media, role of 536–539
Press Ombudsman 543–544
price, dealing with disparities, in tender process 313
principle of avoidance or subsidiary 338–339
principle of legality 589–593
vs right to just administrative action, differences 593
principle of subsidiarity 586
principles of legality and rationality, applying 590–591
prior restraints 542–544
prism of equality, socio-economic rights jurisprudence seen
through 716
prisoners, and right to vote 128–129, 574–575
privacy, right to
scope and content 462–464
sexual intimacy 464–465
private members’ Bills 152–155
procedural fairness
of administrative action 610–614
concept 607–609
contextual approach 612–613
procedurally fair administrative action 606–614
compulsory’ requirements 611–612
procurement 311–314
prohibition of self-help 632–633
prohibitions on gatherings, and Marikana 557–558
Promotion of Access to Information Act (PAIA)
judicial peek at refused records 627–629
purpose 622–625
regulation of access to information 625–626
requests for access to information not responded to 624–
625
section 80, cautious approach to invoking 628–629
see also access to information, right to
Promotion of Administrative Justice Act (PAJA)
abdication of power to make decision by administrator 602
adequate reasons, meaning of 618
administrative action, what constitutes? 593–599
 compulsory requirements for procedurally fair
administrative action 611–612
contextual approach to procedural fairness 612–613
discretion, abuse of 603–604
fair procedures, strict vs efficient running of country 608–
609
introduction 599
jurisdiction concept 602–603
lawful administrative action 599–604
procedural fairness concept 607–609
procedural fairness of administrative action affecting
persons 610–613
procedural fairness of administrative action affecting the
public 613–614
procedurally fair administrative action 606–614
reasonable administrative action 604–605
relationships with Constitution and common law 584–586
requirement to provide reasons excessive burden? 617
rights and legitimate expectations 616–617
rights vs legitimate expectations 609–610
right to be given reasons for an administrative action 615–
618
substantive element in administrative review process 605
Promotion of Equality and Unfair Discrimination Act 452–456
proportional funding of political parties, unfair advantage to
incumbent parties 566
provinces, should number be reduced? 270
provincial government
conflicts with national government, resolution 287–290
objectives and structure 277–283
public acceptance of court’s decision and counter-
majoritarian concerns 74–75
public involvement in legislative and other processes 119–
122
public office, right to stand for and to hold 576
public-participation programme, influence on constitution-
making process? 24
Public Protector 264
Q
qualified retrospective orders 402
R
rationality, and legality, applying principles of 590–591
rationality requirement of president 189–194
rationality review, variable standards undermine respect for
rule of law 192–193
reading down 395–396
reading in 398–400
reasonable accommodation
of beliefs and practices 495–499
principle, in disability field 456
reasonable administrative action 604–605
reasonableness review
elements 712–716
introduction 708–710
means-end effectiveness test 710–712
plans for state to implement socio-economic rights 712–
716
and positive duties 708
prism of equality, socio-economic rights jurisprudence seen
through 716
reasonableness standard of Constitutional Court, elements
712
reasonableness standard of review, and positive duties 708
reasons for an administrative action, right to be given 615–
618
reasons, is requirement to provide an excessive burden? 617
redress measures (affirmative action): section 92 433–443
basic approach 433–437
equality of opportunity or of outcomes 435–437
fairness and proportionality 442–443
programmes to protect and advance 438–440
test 438–443
registration requirement a limitation of right to vote 571
Regulation of Gatherings Act 205 of 1993 556–558
prohibitions on gatherings, and Marikana 557–558
relief not afforded to successful litigants 390–391
religions in South Africa 484
religious observances in state institution 499–501
remedies in socio-economic rights cases 720–722
representative democracy 89–93
limitations in South African system 92–93
requests for access to information not responded 624–625
resolution of conflicts between national and provincial
spheres 287–290
retrospective effect of orders of invalidity, limiting 400–402
retrospective orders, qualified 402
revenue
collection 304–306
distribution 306–308
right not believe in any god 499
rights see Bill of Rights; human dignity; privacy, right to
rights and legitimate expectations 616–617
rights of citizens who are members of political parties 110–
111
rights vs legitimate expectations 609–610
right to make political choices and role of political parties
562–565
right to vote, limitations on 128–129
rule of law
under the 1996 Constitution 81–85
brief history 78–81
Diceyean conception of 79
formal vs substantive conceptions 84–85
Law of Lagos 79–81
undermined by variable standards for rationality review
192–193
run-up to first democratic election 15–19
S
SANDF ban on trade unions, Constitutional court decision
646–647
Secrecy Bill 537–539
sectarian and secular spheres, nuanced relationship 486–
487
section 6 of Constitution 524–525
section 15(1) of Constitution, scope and content 487–495
section 15(2) of Constitution 499–501
section 15(3)(a)(i) of the Constitution 501–503
section 29(2) of Constitution, implications of expansive
interpretation 523
section 36 in practice
balancing and proportionality proper 373–380
hard choices, how should Constitutional Court handle
them? 377
less restrictive, alternative means of achieving end 371–
373
 limiting measure, purpose of 369–371
rational connection requirement 371
reasonable accommodation, applying notion of 380
see also limitation of rights
section 74 Bills, tagging 158–159
section 75 Bills, tagging 159
section 146, when to invoke? 289–290
secular and sectarian spheres, nuanced relationship 486–
487
security of tenure of judges 238–243
Separate Representation of Voters Act of 1951 11
separation of powers
Auditor-General 264–265
Chapter 9 institutions 257
checks and balances 61, 71
and Constitutional Court concerns in socio-economic rights
claims 688–689
counter-majoritarian dilemma 72–77
dialogic model of doctrine 104–106
executive 68–69
in German constitutional model 52
history of the doctrine 62–63
independence of lower- and traditional courts 245–249
introduction 99–101
and judicial authority 202
judiciary 69–71
legislature 65–68
National Assembly (NA) 108–109
National Council of Provinces (NCOP) 109
and national executive 171
(see also deputy president and the rest of the cabinet;
president)
 and the national legislature 108
National Prosecuting Authority 249–255
new democratic constitutional dispensation within 101–104
overstated concerns 696–697
Public Protector 264
purpose and principles 60–62
and socio-economic rights claims 687–697
South African experience 63–77
superior courts, independence of 224–229
and the three branches of government 99–106
see also judiciary
severance 396–397
sexual intimacy and right to privacy 464–465
social grants as form of constitutional damages 412
social state vs free-market system 51–52
societal interests that override associational rights
democracy 476–480
equality 475–476
socio-economic rights
case law, scarcity impoverishes jurisprudence 677
in the constitution 667–668
constraint in adjudication of socio-economic rights claims
687–697
duties: section 7(2) 671–674
enforceable legal rights, role of HRC in translation 678
enforcement of statutory duties against the state 680
Human Rights Commission, role 678
international and foreign law, role of 674–677
interpretation 671–674
introduction 666–667
judicial enforcement, different forms 697–720
and the legislature and executive 678–684
 medical treatment claims to be based on section 27 669–
670
modes of adjudication: sections 8 and 39(2) 685–687
negative and positive duties 672–674
negative rather than positive duties 693–697
non-rights provisions of Constitution, using 670
and other areas of law 669–670
qualified 693–694
remedies in socio-economic rights cases 720–722
separation of powers concerns about claims 687–697
separation of powers concerns overstated 696–697
social mobilisation in addition to litigation 692–693
statutory entitlements, nature of 681
and subsidiarity principle 683
translation through executive and administrative action
683–684
translation through legislation 679–683
uniqueness of SA constitution 667
socio-economic rights jurisprudence seen through prism of
equality 716
South African constitution of 1996 see Constitution
South African history as an interpretative tool 32
South African Republic Constitution 6, 7
specialist courts 211–212
specific belief religious? determining 493
state failing to obey court orders 408–409
state funding of political parties 565–567
state institutions, religious observances in 499–501
stator entitlements, more detailed and concrete in nature 681
strike, right of every worker 652–655
strikers’ right to picket vs landowner’s rights 554–555
subject of a law, determining where it falls 299–300
subsidiarity principle 586
and socio-economic rights 683
substantive element in administrative review process 605
substantive equality
vs formal equality, distinguishing 424–425
vs non-discrimination 420–425
substantive measure test vs pith and substance test for Bills
285–286
substantive vs formal conceptions of the rule of law 84–85
successful litigants, relief not afforded to 390–391
superior courts, independence
test for independence 227–228
vetting of old-order judges, Kenyan system 225
supremacy of the constitution
amending founding provisions of 58
era 54–60
legal system, effects on 56–57
Supreme Court of Appeal (SCA) 210
does it still have a meaningful role to play? 221–222
jurisdiction 222–223
suspension of orders of invalidity 403–406
T
tagging of Bills 157–160
test for redress measures (affirmative action): section 92
438–443
three branches of government and the separation of powers
99–106
threshold question for access to courts 630–631
trade unions, rights of workers 646–651
traditional courts
independence 247–249
 traditional leaders’ role 248–249
traditional governance structures, recognition 9
traditional leaders, role in traditional courts 248–249
transformative constitution, need for 30
transformative nature of South African Constitution of 1996
26–30
transition to democracy 15–26
transparency and openness in parliament 114–116
Tricameral Parliament 14–15
two-stage transition, CODESA and MPNF 19–23
U
undemocratic constitution-making process? 22–23
unequal power relationship between employers and
employees 635
unequal society and one-party dominant democracy see
inegalitarian society and one-party dominant democracy
unfair discrimination
on basis of language, protection 519–520
vs cultural association rights 509–510
differentiation vs discrimination 445–449
hidden forms of discrimination 448–449
indirect discrimination 451–452
invisible prejudice 447–448
is the discrimination unfair? 449–452
unfair labour practices 644–646
Union of South Africa and the bifurcated state 9–15
Union of South Africa Constitution
black voting rights in Cape 10, 11
Westminster system 10
United States constitutional model 44–49
checks and balances 46
 courts’ power of review, justification for 47–48
V
value-based constitutional system 57–59
vetting of old-order judges, Kenyan system 225
vote of no confidence in president 145–146
vote, right to
citizens living abroad 129–130
citizens working abroad 575–576
disenfranchisement of prisoners 575
exclusions 574–576
introduction 569–571
limitations on constitutional right 128–129
prisoners 574–575
public office, right to stand for and to hold 576
rationality standard and bar-coded ID book requirement
573
registration requirement a limitation 571
regulation of 571–573
voters, role in law-making process 122
W
Westminster constitutional model 42–44, 53–54
Cape Colony 6
courts’ function 43
overlap between legislate and executive 44
and Union of South Africa Constitution 10
worker, defining characteristic 638–639
Z
Zulu Kingdom 7–8
Zuma, President, has power of presidency increased during
his tenure? 181