,
, 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
, 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
