1. Background:
SOP IN THE SOUTH AFRICAN CONSTITUTION
- The South African separation of powers = work in progress not as strict as in some other
democracies.
- De Lange v Smuts
- Balance two aspects 1. Checks and balances 2. Actually getting things done
“It 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.
Legislature Executive Judiciary
It passes legislation and hold President is elected by legislature Absolute separation and
executive accountable and s/he appoints cabinet from “independence” and can declare invalid
BUT legislation is usually formulated among members of legislaturE actions by other branches
by executive and introduced by it But is accountable to legislature But there are limits to its powers
AND little separation of personnel and can be removed by it
between legislature and executive Because of overbearing nature of
Electoral system weakens it versus political parties, executive tends to
the executive dominate the legislature (but see
EFF and UDM judgments)
CHIRWA AND NTLIZIYWANA (2017)
Oversight mechanisms:
- Ministerial responsibility (collective and individual) (s 92)
- No confidence motion (s 102)
- Lindiwe Mazibuko v Max Sisulu and Mathole Motshekga CCT 115/12; [2013]
ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)
- Impeachment (s 89)
- Section 56: power to demand evidence
- Section 55: parliamentary committees
CHIRWA AND NTLIZIYWANA ON ‘EFF 1’ (P 150):
,‘That the opposition parties had to resort to the judiciary underscores their distrust that the NA
would be able to hold the executive to account when high-level members of the executive are
personally impugned. This lack of trust was based on the NA’s record on this issue. The devices
of question time, plenary debates, members’ statements and a vote of no confidence against the
President had all been used. When the EFF joined the NA in 2014, they tried unorthodox tactics,
including flouting parliamentary etiquette and rules, derogatory chants against the President and
general disruptive behaviour – all to no avail. No doubt, the level of debate and the voice of the
opposition increased in the fifth NA, but the ANC’s dominance and its members’ allegiance to
the party caucus proved an insurmountable barrier.’ (at 150)
‘Involving the Constitutional Court in the Nkandla saga resulted in a complete shift in the
executive’s position. Eight days before the hearing took place, the President conceded
wrongdoing and expressed a willingness to comply with the Public Protector’s remedial action.
This was a result the NA was unable to obtain for more than five years. Even the 2014 national
election cycle could not nudge the President and the executive to comply with the Public
Protector’s findings. This suggests that the ANC’s dominance in South Africa’s political
landscape in general, and in the NA in particular, and the lack of direct accountability of MPs to
the electorate, make it difficult for the NA to act as an effective oversight mechanism.’ (at 151)
SOLUTION?
- United Democratic Movement v Speaker, National Assembly [2017] ZACC 21 para 79:
- SECRET VOTE REQUEST INSTEAD OF OPEN BALLOT
THE RULE OF LAW ‘LAUNDRY LIST’
(1) there are generally applicable rules, and
(2) the rules are publicised,
(3) understandable, and
(4) not retroactive.
(5) The rules do not contradict each other,
(6) they are relatively consistent over time,
(7) compliance with them is not physically impossible, and
(8) the administration of law reflects the rules as announced. = direct constraint on government
power (subject to constitution and passed legislation)
MAIN COMPONENTS OF THE RULE OF LAW
1. Form (understandable and compliable)
, 2. General, publicized, understandable, consistent and possible to comply with
3. Prospective, reasonably stable and faithfully enforced
4. Law as laid down must be law that is applied to those subject to it
2. THE LEGISLATURE:
● Parliament/ Legislature: 2 Functions and 1 symbolic function
1. Primary: Enact national legislation; S42(3) read with S55(1) and S68
2. Secondary: Perform oversight; S55(2)(a) and (b) read with S92(2)
3. Symbolic: Platform for national debate and public discussion; S42(3) and (4)
● Bicameralism: perform checks and balances and represent different interests
National Assembly S44(3) (>) National Council of Provinces
- General electorate - Nine provinces
- Can elect/ dismiss President
- Explicitly holds organs accountable
Powers: Passing Legislation
S55- leg and oversight 1. Bill intro in NA/NCOP (usually by relevant
S56- evidence and infor before NA cabinet minister)
S57- internal arrangements 2. Referred to portfolio committee for review and
amendment
Privilege: 3. If passed by NA sent to NCOP and vice versa
S58- immunities 4. Presented to President for signature
a. No right to veto duly passed bill unless
unconst (sent back to NA)
● (Strong) Link between Political Parties and Legislators
1. Majority party in parliament= necessary for forming government
2. Strict party discipline
a. Emphasis on internal party discipline
b. Severe restrictions on MPs who disobey party
3. PR electoral system
a. Need party to become MP (list)
General Rules Regarding Operation of Parliament:
Rule 1: Doctors for Life
Open and Transparent - Sittings held in public
Action - But public access may regulated
SOP IN THE SOUTH AFRICAN CONSTITUTION
- The South African separation of powers = work in progress not as strict as in some other
democracies.
- De Lange v Smuts
- Balance two aspects 1. Checks and balances 2. Actually getting things done
“It 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.
Legislature Executive Judiciary
It passes legislation and hold President is elected by legislature Absolute separation and
executive accountable and s/he appoints cabinet from “independence” and can declare invalid
BUT legislation is usually formulated among members of legislaturE actions by other branches
by executive and introduced by it But is accountable to legislature But there are limits to its powers
AND little separation of personnel and can be removed by it
between legislature and executive Because of overbearing nature of
Electoral system weakens it versus political parties, executive tends to
the executive dominate the legislature (but see
EFF and UDM judgments)
CHIRWA AND NTLIZIYWANA (2017)
Oversight mechanisms:
- Ministerial responsibility (collective and individual) (s 92)
- No confidence motion (s 102)
- Lindiwe Mazibuko v Max Sisulu and Mathole Motshekga CCT 115/12; [2013]
ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)
- Impeachment (s 89)
- Section 56: power to demand evidence
- Section 55: parliamentary committees
CHIRWA AND NTLIZIYWANA ON ‘EFF 1’ (P 150):
,‘That the opposition parties had to resort to the judiciary underscores their distrust that the NA
would be able to hold the executive to account when high-level members of the executive are
personally impugned. This lack of trust was based on the NA’s record on this issue. The devices
of question time, plenary debates, members’ statements and a vote of no confidence against the
President had all been used. When the EFF joined the NA in 2014, they tried unorthodox tactics,
including flouting parliamentary etiquette and rules, derogatory chants against the President and
general disruptive behaviour – all to no avail. No doubt, the level of debate and the voice of the
opposition increased in the fifth NA, but the ANC’s dominance and its members’ allegiance to
the party caucus proved an insurmountable barrier.’ (at 150)
‘Involving the Constitutional Court in the Nkandla saga resulted in a complete shift in the
executive’s position. Eight days before the hearing took place, the President conceded
wrongdoing and expressed a willingness to comply with the Public Protector’s remedial action.
This was a result the NA was unable to obtain for more than five years. Even the 2014 national
election cycle could not nudge the President and the executive to comply with the Public
Protector’s findings. This suggests that the ANC’s dominance in South Africa’s political
landscape in general, and in the NA in particular, and the lack of direct accountability of MPs to
the electorate, make it difficult for the NA to act as an effective oversight mechanism.’ (at 151)
SOLUTION?
- United Democratic Movement v Speaker, National Assembly [2017] ZACC 21 para 79:
- SECRET VOTE REQUEST INSTEAD OF OPEN BALLOT
THE RULE OF LAW ‘LAUNDRY LIST’
(1) there are generally applicable rules, and
(2) the rules are publicised,
(3) understandable, and
(4) not retroactive.
(5) The rules do not contradict each other,
(6) they are relatively consistent over time,
(7) compliance with them is not physically impossible, and
(8) the administration of law reflects the rules as announced. = direct constraint on government
power (subject to constitution and passed legislation)
MAIN COMPONENTS OF THE RULE OF LAW
1. Form (understandable and compliable)
, 2. General, publicized, understandable, consistent and possible to comply with
3. Prospective, reasonably stable and faithfully enforced
4. Law as laid down must be law that is applied to those subject to it
2. THE LEGISLATURE:
● Parliament/ Legislature: 2 Functions and 1 symbolic function
1. Primary: Enact national legislation; S42(3) read with S55(1) and S68
2. Secondary: Perform oversight; S55(2)(a) and (b) read with S92(2)
3. Symbolic: Platform for national debate and public discussion; S42(3) and (4)
● Bicameralism: perform checks and balances and represent different interests
National Assembly S44(3) (>) National Council of Provinces
- General electorate - Nine provinces
- Can elect/ dismiss President
- Explicitly holds organs accountable
Powers: Passing Legislation
S55- leg and oversight 1. Bill intro in NA/NCOP (usually by relevant
S56- evidence and infor before NA cabinet minister)
S57- internal arrangements 2. Referred to portfolio committee for review and
amendment
Privilege: 3. If passed by NA sent to NCOP and vice versa
S58- immunities 4. Presented to President for signature
a. No right to veto duly passed bill unless
unconst (sent back to NA)
● (Strong) Link between Political Parties and Legislators
1. Majority party in parliament= necessary for forming government
2. Strict party discipline
a. Emphasis on internal party discipline
b. Severe restrictions on MPs who disobey party
3. PR electoral system
a. Need party to become MP (list)
General Rules Regarding Operation of Parliament:
Rule 1: Doctors for Life
Open and Transparent - Sittings held in public
Action - But public access may regulated
