Summary Constitutional law 271 semester 2 Notes

CONSTITUTIONAL LAW
Semester 1
2020



TERM 1
STUDY GUIDE 1

A. CONSTITUTIONAL HISTORY

1. Setting the scene: Role Players in Constitutional democracy

Focus

 Know the role players in the South African constitutional democracy
(legislature, executive, judiciary and chapter 9 institutions) are introduced.
After this lecture, students should know the different branches of the state and
its role in a constitutional democracy

EFF v Speaker of the National Assembly 2016 (CC) (EFF 1)

 Para 1 = NB
“One of the crucial elements of our constitutional vision is to make a decisive
break from the unchecked abuse of State power and resources that was
virtually institutionalized during the apartheid era. To achieve this goal, we
adopted accountability, the rule of law and the supremacy of the Constitution
as values of our constitutional democracy … public office-bearers [like
President] ignore constitutional obligations at their peril.’”
 “Unchecked abuse of State power”
 Severe limits to judicial review during apartheid
 During apartheid, no checks and balances. Now we have constitutional
supremacy, which ensures checks and balances on power
 The question in this case is whether the president and national assembly
fulfilled his constitutional duties.
Background of case:
 “upgrades” at nkandla, whether or not these were for security reasons
 Complaints lodged with public protector
 PP found that there were upgrades which were not for security purposes
(pool, amphitheater etc) and that tax payers money was spent in an illegal
way

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,  Report said “secure in comfort”. Was upgraded but not for security purposes.
 Public Protector (PP) took remedial action based on these upgrades.
o First: President Zuma must pay back the money he spent on the upgrades
o Second: Ministers involved who knew of these upgrades needed to be held
accountable
o Third: The president had to report back to the NA within 14 days
o President fulfilled one of 3, only fulfilled the last one.
 PP Set up ad hoc committee to investigate report
 National Assembly’s response:
o Resolved to absolve president of all liability
 EFF then approached the Constitutional Court in order to provide clarity on
the remedial action proposed by the public protector


Role players in Constitutional Democracy
1. National Assembly – voted for by the public, NA elects president, thus NA is
responsible for holding the president accountable to his actions.
o Legislative Branch
o The NA elect its members through voting
o NA elects the president
o NA must hold the president accountable
2. State President as head of State
o And Executive branch
3. Courts – Especially CC
o Judicial branch
o Judges are appointed not voted for
o Relevant role- invalidate conduct or law in conflict with constitution
4. Public Protector
o Chap 9 institution, strengthen constitutional democracy
o Powers in s 182 = can investigate any conduct in state affairs in any sphere of
government, and take appropriate remedial action.




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,Discussion of EFF 1 on the facts
 Exclusive jurisdiction of Constitutional Court
o Means constitutional court in this instance is the only court that can hear this
matter, no lower court may examine the case
o Only constitutional court may decide that parliament or the president has
failed to fulfil constitutional duties
 Whether exclusive jurisdiction Wrt application against NA (it did)
 Whether exclusive jurisdiction Wrt application against president (it did)
o Exclusive jurisdiction wrt president
 Constitution creates specific obligations for president alone
 President derives power from the constitution
 Is holding the exec accountable a primary and undefined obligation imposed
on the national assembly? YES
 Legal nature of remedial action
o Para 71 order:
o 3: Court found that the remedial action taken by pp against the president was
binding in this case
o 4: In not complying with the pp’s remedial action, the president acted in a
manner inconsistent with the constitution
o 5-8: President must pay back the reasonable cost for non-security upgrades
 National Assembly?
o 10: Their resolution to absolve the president of his actions was inconsistent
with the constitution
Therefore: Neither president nor NA fulfilled obligations


2. Colonialism and apartheid constitutionalism
(Txtbk:5-15 and I Currie & J de Waal The Constitutional and Administrative Law
Volume 1 (20
 This gives a broad overview of South Africa’s pre-democratic constitutional
history. Students must be familiar with the following broad historical
developments:
 Colonialism;


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,  The 1909 Union Constitution;
 The bifurcated nature of colonial rule and of the Union of South Africa;
 Independence from Britain;
 The rise of parliamentary sovereignty and the exclusion of judicial review;
 Racial segregation;
 Removal of the “coloured vote”, the constitutional crisis of the fifties;
 The “Republican” Constitution of 1961;
 The 1983 (“tricameral”) Constitution;
 The state of emergency in the eighties


Constitutional Crisis of the 1950’s
Historical background:
 17th century colonialists' rule
o Dutch East-India company (VOC)
o 1806 captured by British
 Roman Dutch law= common law (therefore Dutch law still has an influence on
the law of today)
 Dutch law and constitutional law?
o Not much of an impact on our constitutional law
 English law and constitutional principles?
o Some of the English systems of government and constitutional principles
flowed through into South African legal system in the legal systems of the
Cape and Natal, and have since been integrated into national constitutional
law today.
 British appointed governor general had to approve legislation. He had veto
power over bills. They could also disallow bills passed within one year after
being passed.
 4 Territories during this time
o Boer republics – Transvaal and Orange Free State - rejected Westminster
system
o Natal
o Cape
 Anglo-Boer War:

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