Constitutional law

DefinitionTotal of binding rules relating to the distribution of power amongst Legislature, Executive Judiciary, and define

the relationship between organ of state, the organ of state and it citizens.

Branch of law if falls underConstitutional Law fall under the public law branch, which regulate the exercise of state authority in relationship

of inequality. The lines between Public Law and Private law has blurred. Due to

i) The constitution itself state that private law relationship can sometimes be of unequal footing

ii) The modern state is extremely involved in prvt law rltshp(employer & employee, Landlords and

tenants ect)

GENERAL PRINCIPALES OF CONSTITIONAL LAW

1. Constitutionalism Constitutionalism refers to a governance by the people, that government derives it’s power from the

constitution and thus is bound by the constitution. Constitutionalism has mechanisms that place tabs of

government power, to prevent concentration of power in one State. In constitutional state, the constitution is

supreme and inflexible.

Different types of Constitution

Supreme constitution Not Supreme Constitution

Ranks above all laws and any law

inconsistent with it may be declared invalid

to and it inflexible

Equal to other law, parliament is sovereignty and flexible

Prior the 1993 constitution, Parliament was sovereign, which meant that it could enact law irrespective

whether they are discriminatory, inconstistent with the constitution as long as the correct procedure was

followed when enacting the law. And the Court could not test the validity of the law only the procedure

followed when enacting the law was followed. This resulted in gross violation of human rights. We opted

for a Supreme constitution, to remedy this defect and to ensure that never and never again that power be

concentrated in one institution.

2. Not Flexible Flexible

Superior to other laws and requires

special procedures to be followed for it’s

Equal to other laws and no special procedure required for it

amendment

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amendment

South African Constitution is not flexible, Section 2 of the Constitution declared it to be the supreme law of the

land and any law inconsistent with it may be declared invalid. Section 74 states the procedures followed when

amending the constition

Section 1: 75% and support of 6 provinces

Section 2: 2/3 majority and support of 6 provinces

Other provisions: 2/3 and support of 6 provinces if the law affects the power, boundries etc of the province

3. Written Unwritten

4. Autochthonous Allochthonous

Are indigenous in nature, Van der Vyver mentions three kinds such as

Reactive Constition: originates as a result of a specision problem and seeks to resolve it

those maintaining norms established in legal tradition of society

Superimposed: those that do not relate to the history of the country.

2. Rule of Law (also relate to separation of power) A state in which the law reign supreme and everyone is below the law. It originates from Greek, and made

famous by AV Dicey in 1885. According to Dicey rule of law rest of three principle

i) Equlity before the law: every individual is subject to the law and jurisdiction of ordinary courts

ii) Principles of legality: all is subject to the law, and breach of law is determined in an ordinary manner

before ordinary courts

iii) Judge made constitutional: british constitutional law result in judicial decisions confirming common

law (View that government is bound by common law is perculiar to English, in SA prior 1993,

common law was overridden by legislature)

3. Rechtsstaat Principle It a German concept referring to government in by law and not by force. This concept distinguishes

between formal and material rechtsstaat. Formal rechtsstaat refers to compliance with formal requirement

(e.g separation of power) and Material rechtsstaat means the state is bound by higher legal values

embodied in constitution, and exercise of state authority must result in just legal condition. The 1996

Constitution contains number of requirement that validates government actions

4. Democracy The word democracy derives from two greek work demo(the people) and kratos (strength). This implies

government by the people, that the right to govern is not vested in one person but to the people as whole, it

presupposed free political discussions, tolerance of indifferences and right of citizens to participate Types

of Democracy

Direct Democracy

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All major political decision are taken by the people, it works in a small political community where people

can be summoned to discuss matters of common interest

Representative Democracy

The people elect a representatives of their choice who expresses the will of the people. It demands that

the people via direct democracy have a say in the governance of the country usually through legislature. It

is created via election processes which are held frequently. Consent is essential in representative

democracy (ppl consent that government power is exercised by representative on their behalf)

Critics of representative democracy argue that it is a far cry from the ideal of governance by the people,

that meaningful participation of people is weaken by power of certain individual to define political agenda.

It counter argued that is it the only system workable in morden complex society, and election is one method

of keeping government accountable to the people, the constitutional checks and guarantees, separation of

power prevent a single group from becoming too strong

Features indispensable for democratic governance

a) Bill of rights

b) Multi-party system

c) Protection of minorities

d) Mechanism ensuring accountability of government

e) Universal suffrage

5. Trias politica (Separation of Power) Refers to the formal division of state authority into legislature, executive and judiciary functions and the

performance and performance of this functions by the difference branches. It is important because is

prevents concentration of power in one branch, and prevent abuse of state authority. Montesquieu said no

political freedom were one branch makes and execute the law and becomes arbiter when they are

contravened. According to Carpenter this doctrine refers to

a) Formal division of power form legislature, executive and judiciary

b) Seperation of personnel so no one person performs function in more that on branch

c) Separation of functions: one branch may not usurp power and function of another

d) Princile of checks and balances: one branch given specific power to restrain another to achieve

equilibrium amongst the branches

Entrenchment of the trias politica doctrine in 1996 Constitution

South Africa is a sovereign democratic state based amongst other things on the rule of law and supremacy

of the constitution. It follows that government derives it powers from the constitution and a bound by it, and

it action are justiciable in the court of law, which has the power to declare it invalid due to it’s inconsistency

with the constitution.

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1) Formal Division: Out Constitution states provides for a formal division of legislature, executive

and Judiciary. It provides that the national legislative authority in national sphere of government

is vested in parliament, provincial legislature is vested in Provincial Legislature and the local

legislature in the Municipal Council. The Executive authority in the national level is vested in the

President who exercises his power together with his cabinet and in the Province is vested in the

Premier who exercises this power together with his Executive Council. The Judicial authority is

vested in the Court which are independent

2) Separation of Function and Personnel: Our Constitution provides that the National Legislature

in responsible fore enacting in matter conferred to it by the Constitution and may enact laws

affecting the province in certain circumstance (section 44(2)). The Executive implement and

enforce the laws as enacted by parliament, and the Judiciary interpret and apply the law in

concrete situation. The Constitution also provides that no one branch may assume powers or

function not conferred to it by the constitution or by legislature and calls for respect of the power

and function conferred to another sphere.

3) Check and Balances: There are instances where this branches to some extent concurrently

share powers and serves as check and balances. Our Constitution provides for concurrently

powers between National and Provincial on matter listed Schedule 4 matter, and provides for a

solution when there is a conflict on Section 146(2) of the Constitution. The most important

check and balance is judicial review, the court have the powers to test legislature and executive

action and to declare action invalid if it is inconsistence with the constitution to the extent of its

invalidity. It serves as a watchdog over legislature and executive, and any one may seek a

court relief in any matter that may be settled by the courts

Mechanism curbing government power in the constitution

i) bills of rights

ii) separation of power

iii) Judicial control

iv) Democratic election

v) Independacy of Judicial control

vi) Independent institution such as public protector, AG etc

vii) Civilian control over military

Judicial review vs Democracy and whether it is undemocraticRepresentative Democracy is a democracy where the people elect a representative of choice who will

represent them and express their will. It demands that the people participate in the manner in which the

country is governed usually by being represented in parliament. It ensures that the interest of society are

protected and cared for by the elected representative. The checks and guarantees amongst other things

the separation of power, freedom of press ensure that powers are not concerntrated in one branch and

promote democratic debate and competition. However the elected representatives may not act in any

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manner they wish, their conduct must be consistent with the constitution and they must respect the status

of the constitution and the rule of law. It follows therefore that their conduct is justiciable in the court and

may declare it invalid. This give rise to the counter majoritarian dilemma, where an elected representatives

enacts a law and the appointed body invalidates the law. However the following protects judical review

1. The fact that the constitution was made the represent themselves, and a result of lengthy discussion and

compromise which explains to some extent the superiority it enjoys over other laws.

2. Democracy presupposes and environment where ppl engage without fear on vigorous political debate, and

challenge accepted beliefs. The Judiciary contribute by protecting ppl political rights, freedom of

expression

3. Judiciary may inquire into the validity of legislature, and any legislature not consistent with constitution

may be invalidate to the extent of it inconsistency.

4. Judiciary are subject to the constitution and to the rule of law

SYSTEMS OF GOVERNMENT There are two forms of government systems

1. Unitary Form of Government Unitary form of government in its pure form is not conducive of good governance, almost all state finds it

necessary to delegate power, and thus recognition has been given to the principle of devolution, where the

central government delegates certain power to the provinces without abdicating its sovereignty or converting

a unitary state in federal state.

Characteristics

i) Powers are concentrated in central government

ii) The provinces are subject to the authority of the central government

iii) Emphasis is place on centralization rather that decentralization, and were it occurs it enjoys only limited

degree of autonomy

iv) Certain power are delegated to other level, but this does not divest the central government of it authority

Advantanges

i) It is conducive for central planning, and better suited for a state phased with dislocation and economic

crises

ii) Aimed at achieving homogeneity in a country be it in realm of economic or legal affairs

iii) It saves cost because there is not duplication of government different levels

iv) In turn result in more efficient administration and economical efficiency.

General

A system which operated prior 1993, parliament was sovereign and political dispensation was centralized on

both law and practice. Government was characterized by the three tiers of government, Central government

at the top, provincial second and local the weakest. This form of government was used to promote

segregation in South Africa. Parliamentary system of government

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2. Federal form of governmentFederal government has two dimensions International or domestic. International refers to a single order or

state with constituent part that enjoy a defined measure of autonomy and domestic refers a constitutional

arrangement that allows territorial diversity, in an organized structure of state, two legal order exist, the national

and provincial ruling over the same territory.

Characteristics

i) State power and source of incomes in divided between the two order (national and provincial)

ii) Regions given wider powers

iii) Important issues regulated by national government (Defence, taxation etc)

iv) Dispute between legal order resolved by an arbiter.

Advantages

i) minimizes abuse of power due to it demarcation between national and provincial government

ii) efficient for a country with large land area

iii) allow for economical and social experimentation not possible in unitary government

iv) most appropriate for plural society characterized by culture, linguistic or religious diversities.

Classification of FEDERAL FORM OF GOVERNMENT

1. DIVIDED MODEL 2. INTEGRAL MODEL

a) powers and responsibility clearly divided between

national an provincial

b) provinces give independent power of taxation

c) no formal or express recognition of requirement

of corporation btwn the national and provincial

d) Provincial interest not represented in national gov

Integrate and coordinates national and provincial

politics at all levels

a) few areas where national gov enjoys autonomy

b) revenues and powers of taxation are shared

between the spheres

c) Provinces represented in national sphere

d) Number of intergovernmental institutions charged

with corporation between the two spheres and

FORM CHOSEN BY SAIt is said that south Africa opted for a an federal system closer to that of the German (Integral Form),

Carpenter say that it a non-classical form of federation consistent with the concept of subsidiarity which

states that decision are taken by those who have knowledge of local circumstances it is bottom down

approach. Our Constitution place emphasis on corporation between the spheres thus creating a hybrid,

where there is devolution of power and the principles of subsidiarity.

Indicators of Adoption of Integral Form

1. Reference to Sphere as opposed to Level of Governance: Level depicts a hierarchical relationship with

central as powerful, province second and local the weakest, the constitution refer to a sphere of

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government with denotes a move away from the stratified level of government to an approach where

national, provincial and local sphere operate in a more or less as equal partners in government

2. Reference to National as opposed to Central Government: The constitution states that government is

constituted of national, provincial and local sphere of government which are distinctive, interedependant

and interrelated. Central government depict the stratified level of government. The constitution also

provides for the principles upon which the sphere must conform to.

3. Relationship between Spheres of Government: Both national and provincial have some measure of

autonomy on certain matter, the province has autonomy on matter listed under schedule 5, however

this power is not absolute ant he national government may intervene under certain circumstance. Both

spheres have share power on matter listed under schedule 4, and the constitution provides for

remedies when disputes arise from the sharing of this power. Corporation between the spheres in

inevitable.

4. Parliament is required to provide structure facilitation intergovernmental and mechanism of resolving

disputes

5. The spheres must make reasonable effort to exhaust all other remedies before approaching the court

6. Provincial interest represented in Parliament in the Provincial Legislature.

Reason for Integral form

1. Previously in SA the province were not independent, for this reason they lack separate political identity

and administrative capacity to manage it own affairs, this may be

2. developed through intergovernmental corporation, and the constitution enjoins parliament to assist the

provinces to develop admin capacity for effective exercise of power

3. refer above but prov gov must assist local gov to develop admin capacity for effective exercise of its

powers.

CORPORATIVE GOVERNANCEDefinition

It espouses political flexibility, negotiations, compromise and less reliance on rigid separation of power and

synthesis and coordination of endeavors and function of the sphere working together for the common good

of the nation.

Our Constitution states that government is constituted of national, provincial and local sphere of

government which are distinctive, interdependent and interrelated and that they must observe and adhere

to the principles of cooperate government.

Principles of Cooperate Government(Section 42)

1. preserve peace, national unity and indivisibility of the Republic

2. secure the well being of the people of the republic

3. provide, effective, transparent, accountable and coherent government

4. Loyal to the constitution, the republic and it people

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5. respect constitutions status, institutions power and function of another sphere

6. not assume powers or function except those conferred on it by the constitution

7. exercise their power in a manner not encroaching on geographical, institutional integrity or function of

another sphere

8. cooperate with one another in mutual trust and good faith by

a. fostering friendly relations

b. assisting and supporting one another

c. information one another and consulting one another on matters of common interest.

d. Coordinate their actions and legislation with one another

e. Adhere to agreed procedure

f. Avoid legal proceding with one another

9. Exhaust all other remedies before approaching a court

10. If court not satisfied that the remedies provided for are exhausted to refer the dispute back to the

spheres

11. parliament to provide institution facilitating intergovernmental corporation and the mechanism and

procedures followed in respect of disputes

Case: PREMIER OF WESTERN CAPE V PRESIDENT OF RSA 1999The western cape premier challenged the constitutionality of Public Service Amendment Act which

provides head of administration with same broad functions as those in the national department, and that

they no longer fall under the provincial DG. That the DG assumes responsibilities amongst other things of

admin of office of premier, intergovernmental and intragovernmental relation, secretary of executive

councils and give directions on policy matter. The challenge was on the bases of

1. inconsistency with section 42(1)(g)[exercise powers in a manner not encroaching on geographical,

institutional integrity and power and functions of another department,

2. The Act assign function to the provincial DG and head of department in an unacceptable manner

3. Act constrain the premiers power to establish and abolish department of government

4. the Act empower minister to give direction concerning the transfer of certain function to and from the

provincial and it department

The court held as follows

a) Section 42(1)(g): The constitution state that the spheres are distinctive, interdependent and

interrelated, that bother national and provincial legislature have competent powers to structure of local

government and for overseeing it function. The NL has competency of schedule 4 matters and limited

competence on schedule 5 matter. The national government ensure that other spheres carry out their

constitutional obligation and may interfere if a sphere fails to carry it these obligations. The court held

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that Cooperate governance is designed to ensure that in field of common endeavours the spheres will

communicate with one another to implement legislature and to further take reasonable steps in settling

disputes. The court held that the provision is concerned with the way the power is exercised not

whether it exist, that its purpose is to prevent one sphere from using powers to undermine another

sphere and prevent it from functioning effectively. The function and institutional integrity of spheres is

determined by i. its place in the constitutional order, powers and ii)function under the constitution and

iii) countervailing powers of other institutions. The court further held that the constitution requires that

establishment of one public service, gives the powers of structing the public services to NL, this power

need to be exercised carefully in context of the said provision, therefore in exercising this power it done

not encroach on the ability of provinces to carry out the function entrusted with it. The court therefore

disposed this argument.

b) the Argument was rejected by the court, it held that NL is enjoined to enact legislature that facilitate

cooperate governance, and therefore establishment of such post does not infringe on provincial powers

or autonomy. The court referred to the First Certification case of the Constitution where the court held

that province should have ability to employ personnel in provincial administration, determine its function

and the NL to provides for framework within which the appointment are made. It further the functionary

is not a representative of National Government, is appoint by the premier and is accountable to the

premier and the executive council. It also held that the public service structures is a matter determined

by parliament and the provinces must conform to the legislature.

c) The act provided for the premier with powerto establish and abolish provincial department the power

limited to only the extent it must be exercised by way of request directed at the president who may do

so retrospectively. The procedure requiring the premier and president to seek agreement concerning

legality of proposed action is consistent with the principles of cooperate governance.

d) The provision were invalidated. The court held that a law implementing a provincial government will be

made in terms of act of parliament and not by executive directions by the minister and that the minister

power to transfer functions from provincial to national department has no qualifications.

The court held that the Act complies with section 41 of the Constitution in that

1) the law was not made in an arbiter way, the western cape was given an opportunity to comment on the

law and their comment were taken to consideration and the original law was amended accordingly

2) The premier reserves the power to appoint, dismiss, promote the functionary and remains accountable

to him

BRANCHES OF GOVERNMENT

LEGISLATURE

Definition:Legislation authority is the power to enact, amend and repeal rule of laws that are binding to the people within the state and to state organs. In a system of government based on corporate federalism, it is not a single institution but is divided amongst the spheres of gov, national, provincial and local governance, working

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together for the common good of the nation. In South African which prescribes to this corporate federalism, the legislative authority is divided amongst the spheres who must work to together.

Composition of ParliamentIn SA Parliament is bicameral, meaning that it is two folds, the National Assembly and the National Council of the Provinces(NCOP), this is so because

1. To alleviate parliament workload2. encourages through consideration of any matter before parliament3. the two houses act as check and balance which is consistence with the doctrine of separation of power4. Better representation of the electorate, if underrepresented in one house, he might be adequately

represented in another.

Functions/Duties of National Assembly and NCOP

National AssemblyIt not only entrusted with law making functions but also:-

1. Parliament as an elected represent of the people in the national government, it must therefore represent the ppl in decision making and articulates the ppl interest. It serves as communication channel btwn the ppl and the government

2. It elect the President3. It debate and approves bills submitted to it by the executive (passes legislation)4. Maintain oversight over executive and organs of state5. Initiate and prepares legislature except for Money bills6. Ensure public participation in law making process and conduct business in public within reasonable

measure of public access.

NCOP1. Represent the provinces in the NA2. Provide for public consideration on laws affecting the province3. Participate in the National Legislative process

Election and term of PARLIAMENTElection is another method to keeping government accountable to the people. It is process through which the ppl elect a representative of choice in the national government, who must therefore express the will of the ppl. To assist in facilitating this process the constitution established the Electoral Commission which ensure that the process is free and fair. The NA is elected to represent the ppl and ensure governance by the ppl

Right to VoteOut Constitution guarantee to the right to vote and to be elected and stand and hold public office, and to do is in secret. However such right is not absolute it comes with qualifications, such that you must be of age, and south African citizen etc and those restriction that are imposed by the Electoral Act.

Provisions of the Electoral Act were subject to constitutional litigation. In August 1999 case the actions of the Electoral Commission to day deny prisoner the right to vote came after judicial scrutiny The court found that the actions of the Commission were unconstitutional. It held that

1. The right of votes imposes a positive duty on legislature and the executive2. That the Electoral Commission Act, poses a positive duty on the Commission to take reasonable steps

to ensure that eligible voters are registered3. Adult suffrage is one of he values in the constitution, and has historical importance in South Africa.

That the vote of each and every person is badge of dignity and personhood, and the right may not be limited without justification

4. that franchise legislation should be interpreted in favour of enfranchisement

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5. Though prisoners no longer had freedom of movement and a subject to the rules and regulation prescribing how they must conduct themselves, they have substantial residue of basic rights which they may not be denied without justification

6. the Commission has not complied with its obligation of enabling eligible voters to register and vote, that the consequence has been a system of registration and voting which would effectively disenfranchise prisoner with constitutional or statutory authority

7. Parliament cannot in silence deprive prisoner right to vote, not its silence be interpreted to empower the Commission to decide on categories of prisoner allowed or not allowed to vote

Following the decision of the CC, Parliament enacted a law which amended the Electoral Act, which disenfranchised prisoners sentenced without an option of a fine from voting during their imprisonment. This provision was subject to litigation in the CC in the case of Minister of Home Affairs v NICRO on the basis on their constitutionality. The legal question before the court was whether the limitation was reasonable and justifiable in an open democratic society based on human dignity equality and freedom. There are two contentions advance on behalf of the Minister which are

a) The special arrangement for enabling all prisoner to vote will put strain on financial and logistical resources available to the commissioner

b) That it is important for government to denounce crime, and communicate to the public that rights that citizens have are related to their duties and obligations as citizens

The Court held that the right is infringed and further held that

i) The right to vote must be seen in light of it context, and is foundation to democracy which is the core value of Constitution. In country with a history where denial of the right confirm white supremacy and marginalize great majority of the country it is a precious right that must be vigilantly protected and respected. It held that the right may only be limited subject to section 36 of the Constitution.

ii) The reason for strains on logistical and financial resources available to the Commission was disposed by the court on the basis that is established a evidential burden, which the Minister failed to discharge. The fact that there are polling station that would be made available to those prisoner who are allowed to void is one such counter argument

iii) On the second leg of the contention advanced on Behalf of the Minister Chaskalson CJ with reliance to the Canadian Case Sauve V Canada which dealt with the limitation of the right to prisoners sentence to two year or more whilst in prison on objective amongst other thingsto enhance civic responsibility and respect for the rule of law. The court held that the court failed to establish connection between denial of the right and the objective of enhancing respect if kaw and ensuring appropriate punishment. The Court further held that the measure, did not meet minimum impairment test and the requirements for proportionality. In agreement Chaskalson CJConduded that there was not enough information enabling the court to assess and evaluate the policy that is pursued by the limitation, that the limitation disenfranchised prisoners whose convictions and sentences are under appeal. It therefore ordered that arrangement be made for the excluded prisoners to be registered and to vote.

iv) Madala J that the denial of the right was government objective of balancing individual rights and the values of society. The removal of the rights was temporal and restored upon released. That the limitation served an important purpose to ensure integrity of voting process and assures that the interests and the rights of ordinary law abiding citizens are important as those of prisoners. and therefore dismissed the application

v) Ngcobo J was of the view that denouncing of crime by government promote culture of observance of civic duties and obligation, that the limitation is not absolute. However the limitation makes no distinction between prisoners awaiting outcome of appeal and those whose appeals have been finalized and sentenced reduced to a fine. And found that the defect could adequately be cured by reading in.

The Electoral systems in used during elections

Difinition of Electoral System

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A system through which the citizen elect are representative of choice, and set out procedures for the election of political parties (how votes are cast and translated into seats in legislature) In normally regulatesa) the franchiseb) method of votingc) frequency of electionsd) qualification and nomination of candidatese) determination and declaration of results

Forms of Electoral SystemsTerritorial representation

Charecterised by the Winminster system and was operational In SA prior 1993.

Principles National territory is devided in to

constituencies Each constituent elects a representatives

which can be more than one, but votes for one

Candidate with more vote is elected The winner is the person who first past the

post.Advantages

It’s simple Conducive for strong stable government Personal bond between electorate and the

representative Disadvantages

Incorrectly reflect relative strength of parties

Favour stronger parties to the ditriment of weaker parties

Artificial delineation of constituencies, can give rise to imbalanced in constituency

May lead to gerrymandering

Proportional representation

All parties participating in the election obtain a represent in Parliament and reflects votes cast for these parties

Advantages Result reflects voters opinion Eliminate delimitation of voters destricts Equality of votes Wider representation of parties Opportunity of minorities to coalition against

majority More Inclusive system of representation

Disadvantages May result in weak unstable governance due to

possibility of no party obtaining absolute majority

No personal bond btwn voter and elected person

Complicated and difficult Often fails to produce clear and workable

majority By-elections do not operate as indicators of

political trend

System in use in South AfricaThe interim Constitution provided for the list system, where the voter has one chose to vote for a political party of choice. The 1996 Constitution however Provided for the use of electoral system resulting to proportional system. The are four types of proportional sytems

a) List system mentiongb) D’Hondt systemc) Singe-transferable systemd) Saint Lague System

THEORIES OF REPRESENTATION There are two theories of representation

Free Mandate Imperative MandateThe elected member is not bound by the mandate given to him by the electorate, he act in accord to the dictates of his conscience

The elected is bound to by the mandate of the electorate, and if he resign membership to a party, he must also resign hi seat.

SA Follow which oneImperative mandate operated during the interim Constitution and transitional period in 1996 constitution. The 1996 Constitution provided that the imperative mandate maybe abolished by Act of Parliament. The position was indeed amended by four Acts regulating the position of Parliament of Provincial

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legislature. The constitutionality of this provision were challenged in UDB V President of Republic. To which the court invalidated the legislation due to it not being passed within reasonable period of time as mandated by schedule 6. Shortly after the case constitution was amendement to regulate the issue of floor crossing. Which entailed: Member given 15 days in September the second or forth year after general election within which

they could change party allegiance Parties may merge or separate during this period Permission required only whn 10% of member of party defectThis resulted in mistrust by the electorate in the election process, hence they elect a body to represent them in parliament and then the member defect to another party contra to the believes of the electorate.

PARLIMANE PRIVELEGESThey developed in Britain to protect Parliament from interference by the Mornach, today they protect parliament from outside interference. The power enable them to perform their functions without hindrance.

Priveleges under the 1996 Consti NA determine it own internal procedures and controls with due regard to participatory and representative

democracy, accountability and transparency. Guaranteed freedom of speech in accord to internal rules of debate, and exempted from civil or criminal

action emanating from what is said in parliament Parliament committees may summon ppl to give evident and submit documents Parliament may enforce it’s own rules and disciplinary measures for contempt of parliament and other

infringements of the ACT

Parliament privileges came under constitutional scrutiny in the De Lille v Speak of Parliament Case, In this case De Lille challenged the decision of NA to suspend her for 15 days in NA, following her allegation that certain members of the ANC were political spies of the former apartheid government on the bases that the decision violated her constitutional rights and that he was not afforded a fair trial. On behalf of the NA it was argued that Assembly exercised it parliamentary privilege to manage it’s own affairs and us such the parliamentary privileges are not subject to judicial review. The court held that the suspension indeed unjustly violated De Lille right to freedom, just administration and access to court. The court found as follows:-

Parliament derives it powers from Constitution and Acts consistence with the constitution either by expressedly or by necessary implication, and can therefore not confer on itself or to another constituent powers not conferred to it by the mentioned source. It therefore follows that Parliament Privileges is a constitutional power and it subject to the constitutions and NA decision are bound by Legislature and Constitution.

That the powers to control and determine internal arrangements, proceedings, procedures and make it’s own laws must give regard to representation and participatory democracy and provide for this participation. Democracy is the core value of the Constitution, together with multi-party systems and democratic governance. The NA is elected to ensure governance by the people under the constitution. It follows that these powers are meant to facilitate exercise of power and functions by NA, and do not embrace suspension of member since this conflict with participatory democracy as it does not only punish the member, but the party the member affiliate to and the electorate who elected the member to represent their interest in parliament.

That privileges as constitutional power is subject to judicial review, however if parliament privilege is exercised in breach of constitution, redress may be sought and the aggrieved party may approach the courts for relieve. NB: Only when exercised mala fide or breach of constitution will the court interfere

PARLIAMENT CAN NOT BE EXPECTED TO DO ALL, DISCUSS(REFER Bi-Cameral and Committees)

Delegation of sum of it powers

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Due to the complexity of matters before parliament and it workload, it cannot be expected to deal with everything. For this reason committees are charged on behalf of parliament to fulfill certain functions these members consist of member of the assembly. This system encourages through consideration of matters, and accountability and transparency. Both houses of Parliament have standing committees which exist for the duration of parliament. The general rule is that all parties must be represented proportional to the seat they hold in Parliament in this committee.

Portfolio Committee: usually consist of 17 member, and attached to a particulate department. They consider bills relating to the department, and monitors government activation of that department. This committee may also investigate legislative programs, budget functioning, staff etc

Select Committee: functions in the same manner as portfolio committee Committee for Public Finance: This committee checks financial statement and audit report of organs of

state, and may investigate and report of all irregularities. It is important bcoz it prevent misuse of fund and corruption.

Medication Committee: This committee settles disputes emanating from bills between the NCOP and the NA

LEGISLATIVE PROCESSSeries of procedure that must take place before a law is formulated, considered, refined, and approved by the competent body, in order to be valid and have the force of law.

Exclusive Power of parliamentParliament has exclusive powers over

a) to repeal, amend it’s own lawsb) on laws that are conferred to it either by the constitutionc) Has residual legislative powers, on matters not numerated on the constitution or mentioned in schedule

4 or 5Exclusive power of the Provinces

The Legislative authority of the provinces is vested in province, and enjoy autonomy on matter listed under schedule 5. However this right is not absolute, the National Legislature may intervene in the right only in terms of Section 44(2) if the NL

a) maintains National Standards Economic Unity

national securityb) to prevent the province from actions that are prejudicial to the interest of another province or the countryc) Establish minimum standards required to render services

Concurrent Powers btwn NL & PLSchedule four enumerates areas that both the NL and PL share, in case of a conflict between the two laws Section 146(2) Applies and the National Law will prevail only if

i) the law deal with a matter that the PL can not regulate effectively by law enacted by respective province individually

ii) Deals with matter requiring uniformity, and the law provides fornorms and standard frameworks national policy

iii) The Legislature is necessary for( the court must give due regard to rejection of bill by NCOP maintain national security maintain economic unity protects common market in relation of goods, services, capital and labour promotes economic activities across provincial boundries promote equal opportunity and acess to gov services protection of environment

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iv) Prevent unreasonable action by province prejudicial to the economic, health and interest of another province or impedes implementation of economic polity

v) Law made in terms of Act of Parliament that prevails when approved by NCOP

PROCESS OF PASSING LEGISLATURE

General Process of PASSING LegislatureStep 1: legislature is formulated and finalized in view of intro in parliament. Most Leg is prepared by executive as executor and admin of law they are better equipped to determine the need for new law or which interest need to be regulated

Step 2: Bill may only be introduced by CB,, DM or member of committee

Step 3: The bill is consider, debated in the committee and plenary session of parliament (to Determine bckgrnd, purpose etc and put to vote if approved it is then

Step 4: Referred to the NCOP for consideration, if it is approved then the Bill is sent to the President for Assent but only has legal force after it has been published in the Government Gazzette

BILLS AMENDIND THE CONSTITUTIONi) It must not contain any other provision except those amendment to the constitutionii) It must be published in the GG before for public comment before it is introduced in NAiii) Submit Particular to NCOP and NA iv) Submit written comment received to the Speaker and to the chair NCOP if it amended Section 1, 2,

or affects the provincev) May not be put to vote within 30 day of introduction and Tabling in the NA or NCOP (NCOP may not

pass a bill unless approved by PL)vi) Section 1 (75% and support of 6 provinces)vii) Section 2 (2/3 majority and support of 6 provinces)viii) Other Provisions (2/3 Majority ) if affect the province it boundaries, powers with support of 6

provinces

BILLS AFFECTING THE PROVINCE

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BILLS NOT AFFECTING THE PROVINCE

PRESIDENT ASSENT TO THE BILLIf a bill is passed by NA it must be sent to the President to assent, if president has reservation must refer it

back to NA and NCOP to participate in the reconsideration process if the reservation affects the provinces. If

NA accommodates the reservation the president may sign the bill if not he may refer the bill to the

Constitutional Court for decision on it constitutionality. In in re constitutionality of liquor bill, the president

referred the bill to the constitutional court for decision on it constitutionality, the court found that in relation to

the invocation of section 79 by the president, the court is called upon to decided on the following matters

NATIONAL ASSEMLY:

NCOP

PASS AMEND REJECTS

REFERED TO PRESI FRO ASSENT

REFERED BACK TO NA: IF IT REFUSED TO PASS AMENDED BILTHEN

BILL IS REFERED TO MEDICATION COMMITTEE

AGREE WITH NA

ANOTHER VERSION

AGREE WITH NCOP

REFERED 2 NCOP, WHEN PASSED

2 PRESI FOR ASSENT

REFRED TO NA, IF PASSED2 PRESI 4 ASSENT

REFERED 2 NA & NCOP IF PASSED

BR BOTH

PRESI 4 ASSENT

NA REFERS THE BILL TO NCOP

PASS

REJECTS/AMEND THE BILL

REFERRED TO PRESI FOR ASSENT

NA CONSIDER THE AMENDS AND PASS THE BILL WITH/OUT AMENDMENTS OR DECIDE NOT 2 PROCEED WITH IT

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a) Does the court deal with president reservation or does it direct attention widely, the court held

that the section states that the president may sent a bill to the court only if his reservation are

not accommodated by the NA, therefore the court may only decides on the reservations

expressed by the president with regard to the bill

b) Does the court examine all provisions certify conclusively that is accord to the constitution: The

court did not decide on the matter

c) Does the court finding restrict later constitutional adjudication. The court found only on the

matter dealt with by the court on the reservation of the president, due to the principle that the

courts are bound by their previous decisions.

DELEGATION OF NATIONAL LEGISLATIVE AUTHORITY TO1. EXECUTIVE BODY

The question came under constitutional litigation in the Execetuve Council of Western Cape 1995 case,

where the Local Government Transitional Act authorizing the president to amend an act of parliament by

legislation, to which the president used the power to transfer certain powers from provincial to national

government. The Court held that NL is vested in parliament, to make law in accordance to the constitution. It

held that parliament cannot be expected to attend to all matters and there is nothing on constitution prohibiting

delegation. This facilitate effective law making. However there is a difference between delegating authority to

make subordinate law in terms of an Act and assigning plenary leg powers to another body. The court found

that the delegation was inconsistent with the constitution. In the Executive Council of Western Cape 1999,

the court held that the delegation of parliament of its law making function is subject to the constitution, and

authority to make subordinate laws must be exercised within the framework of a Statute. The court further held

that the delegation is constitution is matter of constitutional interpretation, the language used and the context

the provision are construed. It held that the Constitution makes use of various expression when conferring

powers, “national leg must”, “as determined by leg” or “national leg may”, the first two denote that the powers

may not be delgated.

2. PROVICIAL BODY In section 44, the constitution states that parliament may assign it leg power, except those of amending the

constitution to another leg body in government, according to Chaskalson and Klaaren the leg competence

must be proceeded by Act of parliament not by proclamation

3. CONSTITUTIONAL AMENDMENTThis power may not be delegation

LIMITATION OF PARLIAMENT LEG AUTHORITYa) Parliament derives it power from the constitution and is subject to it and the rule of law

b) Parliament may not assume function not conferred to it by the constitution, and therefore must respect

power and integrity of other government

c) Limitations on the power to amend the constitution (special procedures required and the percentages

required)

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d) The constitution has various procedures upon which parliament must conform with when enacting laws

e) It also provides for extra parliamentary consultation

EXECUTIVE AUTHORITY

DEFINITIONa) That body of the law that execute and enforce the law.

b) This powers are vested in the President and he exercises them together with his cabinet

PRESIDENTThe president is both head of state and of the executive and he must respect, protect, uphold the

constitution and must promote national unity that which advances the republic.

Accountability of President

The president in personally accountable for the powers conferred upon him either by the Constitution or by

Legislature

Power he exercises as Head of State

Entrusted by Constitution and legislation with powers, including those necessary to perform as head of

state or executive the power to

i) assenting to bills

ii) referring bills to the constitutional court

iii) call for a national referendum

iv) appoint a commissioner of enquiry

v) summon NA to a special seating to conduct government business

vi) receive and recognize foreign diplomat and consular representative

vii) confer honors

viii) appoint ambassadors, diplomats, consular representatives

ix) pardon and reprieve offenders and remitting any fines penalties and forfeiture

x) refer bill to the NA for reconsideration on it constitutionality

xi) make any appointment required by constitution or by legislature.

How he must exercise his powers

a. After consultation : it means that the president must consult the relevant functionary or institution, but is

not bound by it recommendation, such as the appointment of Constitutional Court Judges, the Chief

Justice and the four member so JSC.

b. Advise Of or Recommendation Of : this means that the president is bound to act as advised or

according to the recommendation received. It derives from British law. The appointment of ordinary

judges the President is required to act on advise of JSC, and my remove ordinary judge if JSC finds in

the regard and NA calls for the removal

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c. Requirement of his Decision being Countersigned : His decision must be in writing when taken in terms

of legislature or has legal consequence, and if it concerns a cabinet members functions must be

countersigned by that cabinet member

d. Requirement that he act together with his cabinet : the cabinet must concur in accordance to it own

decision making procedure.

Election, Assumption, Term of OfficeThe President is elected by the NA, on a seating presided over by the CJ not more that 30 days the

vacancy occurs. He then assumes office after he has affirmed faithfulness to the republic and obedience

to the constitution. He may not stay in office for more that two terms or end when a vacancy occurs.

Removal of President of Motion of no confidentThe President may be removed by a resolution adopted with 2/3 majority of NA when there is

a) serous violation of constitution and the law

b) serious misconduct

c) inability to perform the function of office

And by adoption of motion of no confidence by 2/3 majority of the NA including or excluding his cabinet.

Acting PresidentThe DP, Min designated by President or Cabinet, The Speaker and has same power and functions as

president and assumes duty after being sworn in.

PRESIDENT’S PEROGATIVEA prerogative is a discretionary power exercised at will, in modern sense refers to common law

discretionary exercised by head of state. In South Africa Prior 1993 the president had royal prerogative

which include powers to conclude treaties, pardon prisoners, declare war and make peace. This

prerogatives were provided for in the 1983 Constitution which provided that all the prerogatives exercised

by president before commencement of constitution the president retains them. The 1993 and 1996

Constitution are silent. However Rautenbech and Malherbe are of the view that the president retain power

of issuing passport which now is regulated by an Act which vest this power on government and powers to

perform Acts of State(Foreign relation). The court held in Hugo 1997 that the president only has

prerogative enumerated in the constitution, and exercise of these powers is subject to judicial review

flowing form supremacy of the constitution and that the branches are bound by it.

Powers exercised together with cabinetThe President together with his cabinet must

a) Initiate and prepare legislature

b) Implement national legislature

c) Develop & implement national policy

d) Coordinate the functions of government departments and admin

e) Perform any other executive function provided for in the constitution or national legislature.

Cabinet

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The cabinet consist of the president as head of cabinet, the Deputy President and Minister, they are

appointed by the President and may dismiss them. The president select his cabinet from members of the

NA with the exception of two who may not be member of NA. He may also appoint DM from NA member

with same requirements. Cabinet is dissolved when a new president is appointed, or a vote of no confident

is passed by the NA with support of 2/3 majority, and assume office after affirming faithfulness to the

republic and obedience to the constitution.

Conduct of cabineta) Must act in accord to the code of ethics prescribed by NL

b) May not undertake any other paid work

c) Act in a manner inconsistence with his/office of expose him/herself in situation contradictory to the

office he hold

d) Use information entrusted with to enrich himself or others

e) Act in accordance to the constitution and

f) Provide parliament with regular reports on matters under their control

Accountability of CabinetCabinet members are both individually and collectively accountable to NA for the exercise of powers and

performance of their functions and a responsible for the powers entrusted with by Constitution or National

Legislature.

Collective accountability

It means that cabinet members must act in unison to the public and carry joint responsibility before

parliament, members who disagree with decision may either support it or resign.

Individual accountability

It conveys three duties on the ministers

a) report regularly to parliament on what is happening in his department

b) acknowledge when something went wrong and

c) provide the remedies taken to rectify the defect

d) resign if the situation is sufficiently serious if

i) Minister is personally responsible for that which went wrong

ii) Guilty of immoral personal behaviour

iii) Is vicariously responsible fore the actions of his officials.

Transfer, temporarily or assignment of functionsa) president my transfer legislation entrusted to a member and power of functions entrusted by leg to

another member by proclamation.

b) assign function to another member who is absent from office

c) assign function performed in terms of Act to a member of PEC or Municipal Council only if it is

consistent with the act, in terms of agreement btwn cabinet member and PEC or MC, taking effect after

proclamation by president.

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CONTROL OVER EXECUTIVEThe following bodies exerts control over the executive

1) Parliament

2) Judiciary

3) Administrative Law

4) Other Institution (Public Protector, AG, etc)

Parliamentary control

The Constitution states that parliament must provide for mechanism to ensure that executive is

accountable to it, and must maintain an oversight over the executive. This is so due to

a) Prior 1993 too much power was concentrated in the executive, which was not accountable and

resulting in gross violation of human rights and corruptions

b) Constitution moves away form authoritarian culture and aim to ensure accountability, transparency and

responsiveness

c) The NA are elected members and they must ensure that the interest of the ppl are protected at all times

Types of parliamentary Control

i. Cabinet ministers are individually and collectively accountable to parliament and are obligated to

provide parliament with regular reports on what is happening in their departments.

ii. Parliament may pose question to Cabinet Minister on any aspect of their functions and powers

iii. Interpellation, which are used to engage on debates with ministers on their responsibilities

iv. Parliamentary committees may investigate and report on activities of executive

v. Parliament authorizes raising of taxes and spending of public funds

vi. Parliament tables and approves subordinate legislature

vii. Parliament may remove president either by adopting motion of no confident or a resolution

JUDICIAL CONTROL OVER EXECUTIVEThe main object is to ensure that executive respect and observe the constitution

1) The Constitution containing a bill or right against which any conduct must be tested against, and which

provides that limitation of any right must be reasonable and justiciable in an open democratic society

based on human dignity, equality and freedom

2) The testing power of the court into the validity of executive action, which may be invalidated if

inconsistent with the constitution to the extent of its invalidity

3) The constitutional guarantees of access to information and just admin action ensure openness and

transparency

4) The requirement of certain procedures to be followed in order for conduct to be valid provided in the

constitution

5) Obligation that executive organs must respect doctrine of trias politica and may not usurp functions of

another organ

6) The obligation on executive to respect constitutional status, functions, powers of another sphere.

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ADMINISTRATIVE LAWThe constitution guarantee to everyone the right to administrative action which is reasonable, just and

procedurally fair, and to be given reason when right are adversely affected. This provide a measure upon

which administrative action must conform and ensures that executive apply their mind in when taking

administrative decisions. This serves to protect citizens in subordinate position to people entrusted with

state authority.

OTHER INSTITUTION CONTROL OVER EXECUTIVE1) Public Protector: It is an independent and impartial body, which investigate on any conduct

alleged to be prejudicial or improper report on it and take remedial steps.

2) Auditor-General: Audits and report on financial statement of all government departments and

report on any irregularities.

3) Commission of Enquiry: this commission is appointed by the president and investigate on

conduct of the executive

4) Media: report on the conduct of politicians

5) General Public: through public debate, pressure groups or association such as trade unions,

churches it exercises control over executive

6) Special investigation Unit and Special Tribunal Act: in terms of which the presidents appoint a

special investigation unit to investigate alleged illegal conduct by government employees.

SARFU CASEThe president power to appoint a commissioner of enquiry came under constitutional adjudication in the case

of SARFU 1999. In this case the President appointed a commissioner of enquiry and declared that the

provision of the Commissions Act applied to the commission. SARFU applied for an order setting aside the

president decision, which the previous court upheld on ground that the President abdicated his powers to

appoint the commissioner to the minister, that if this is wrong the decision would still be invalid hence SARFU

was not afforded and opportunity to be heard prior the appointment and that the president failed to apply his

mind on the matter. The case raised important questions of legal principles concerning the basis on which the

court may review the exercise of presidential power and whether a president may be call to give evidence in a

court of law. The court held that the exercise of public power including that of president is subject to the

Constitution which is the supreme law and these exercise of power may be reviewed I the court of law.

On Abdication of power the court held that the constitution confers the power of appointing a commission of

enquiry only to the president and the Commission Act confers the powers of declaring it’s provision applicable

to the commission only to the President. The court held that the previous court relied on Baxter Administration

of law to determine abdication. It said that Baxter identified three catergories of unlawful abdication

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i) where a functionary delegate a power conferred to it to someone else it validity depend on

whether the delegans had the power to do so, it follows that the Constitution vest the power

to appoint a commission to the president alone

ii) functionary conferred with power doesn’t decide out of his own accord but does so on the

instruction of another

iii) functionary conferred with power refers the decision to another, but it the final decision is

taken by the functionary himself this excludes unlawfulness of the abdication

the court therefore held that in exercise of presidential power the president may consult and may consider

advise of his minister and advisors, the integral part is that the final decision must be taken by the president

and accordingly found no abdication of power by the president

On the question whether a president may be called to give evidence the court held that the doctrine of

separation of power requires that the president not be treated as any other witness and that the court to

respect, protect the dignity and status of the office of the president and it’s efficiency under the constitution.

However, it also held that administration of justice should not be impeded by the courts desire to ensure the

dignity of the president office and to safeguard it. It found that there are two interest that might conflict in the

decision to call the president to give evidence, that of public interest in protecting the office of the president and

robust discussion taking unhindered at meetings of the cabinet when sensitive and important matters of policy

are discussed. It held that careful consideration should be given before an order compelling the president is

given, that unless the interest of justice clearly demand that the president be called the order should not be

given an due regard should be given to the status, dignity, his busy schedule and the importance of this job. It

accordingly found that the interest of justice would not have been impeded if the president was not called for

evident. And found that the judges decision to be fundamentally flawed.

JUDICIAL INTERGRITY

FEED-BACK ON ASSIGNMENT 2Study the cartoon on page 182 of your study guide and give a critical discussion of whether the mechanisms

that are in place for protecting the integrity of the courts are sufficient for that purpose. You may refer to other

sources in your discussion.

Your should have answered the question more or less on the following lines: IntroductionWould you agree that the cartoon suggests that there is the possibility of bribery and corruption in the judicial

system? If you agree that it does, then the next question is obviously: Are there mechanisms in place to ensure

that the judiciary acts in an impartial and independent manner, without fear or favour or prejudice, and that

prevent the judiciary from engaging in improper conduct? In study unit 5 of the study guide you also learned

about the counter-majoritarian dilemma that questioned judges' legitimacy on the grounds that they are

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appointed to the bench, and not elected in terms of an electoral process. The above issues raise serious

concerns about the independence and impartiality of the courts.

BodyApart from mentioning the personal and functional independence of the courtsyou had to critically evaluate whether the mechanisms are sufficient to keepmembers of the judiciary from acting unlawfully. Students would then ofcourse have come to their own individual conclusionsMeaning of judicial independence

The trias politica doctrine, as discussed in study unit 5 of the study guide, is firmly embedded in the 1996

Constitution. One of the consequences of this doctrine is the independence of the judiciary. This means that

the idea of judicial independence goes hand in hand with the doctrine of separation of powers. It entails that

the courtsare subject only to the law, and that no person or institution may interfere with the functioning of the

courts. The independence of the judiciary is a vital ingredient of the constitutional state. The reason is obvious:

if judges can be told what to do by politicians (or by business or other interest groups) there is little chance that

the courts will be an effective mechanism for preventing the abuse of power. The independence of the

judiciary is firmly entrenched in the South African Constitution. The Constitution contains both a general

provision that guarantees the principles of judicial independence and noninterference by other organs of state

(s165) and several other specific provisions pertaining to the appointment, salaries, removal and terms of office

of judges. Rautenbach and Malherbe (Constitutional law 220--223) distinguish between the personal and

functional independence of the courts.

Functional independenceFunctional independence is primarily an incidence of the separation-of-powers doctrine. Functional

independence refers to the way in which the courts operate within the framework of a constitutional state. In

the Canadian case of The Queen in Right of Canada v Beauegard (1986) 30 DLR (4th) 481 (SCC) 491

Dickson CJ spoke of the core principle central to the independence of the judiciary as the "complete liberty of

individual judges to hear and determine cases before them independent of, and free from, external influences

or influence of government, pressure groups, individuals or even other judges". This means that judicial power

is exercised by the judiciary, and may not be usurped by the legislature, the executive or any other institutions.

Judicial officers exercise their powers subject only to the Constitution and the law, not to the whims of public

opinion or of the majority in Parliament. Through the years, the functional independence of the South African

judiciary was threatened on more than one occasion. The most famous (or infamous!) example CSL201M/201

4 occurred during the 1950s, when Parliament attempted to set up a High Court of Parliament that would have

the power to set aside decisions of the Appellate Division of the Supreme Court. The creation of the High Court

of Parliament was Parliament's response to an earlier decision of the Appellate Division (Harris v Minister of

Interior 1952 (2) SA 428 (A)), in which it declared the Separate Representation of Voters Act 46 of 1951

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unconstitutional, on the ground that it was not adopted in accordance with the correct procedure for

constitutional amendments. (The Separate Representation of Voters Act aimed to remove "coloured voters"

from the common voters' roll.) The High Court of Parliament subsequently reversed the decision in the Harris

case and upheld the validity of the Separate Representation of Voters Act. The validity of the High Court of

Parliament Act was attacked in Minister of the Interior v Harris 1952 (4) SA 769 (A) (the "second Harris

case"). It was argued that Parliament was endeavouring to assume the role and functions of the Court and was

trying to act as judge, jury and executioner. The Cape Provincial Division accepted this argument, and so did

the Appellate Division. The Appellate Division found that the High Court of Parliament was no court of law, but

was merely Parliament in a different guise. The Act was therefore invalidated. Section 165 of the 1996

Constitution seeks to prevent such a situation from ever arising again. Subsection (1) states that the judicial

authority is vested in the courts; subsection (2) recognises the independence of the courts; and subsection (3)

provides that no person or organ of state may interfere with the functioning of the courts. Subsection (4) goes

even further, and enjoins organs of state to assist and protect the courts to ensure their independence,

impartiality, dignity, accessibility and effectiveness. Another factor that contributes to the functional

independence of the courts is the fact that judicial officers enjoy immunity against civil actions and the offence

of contempt of court. In May v Udwin 1981 (1) SA 19 (A), the following was stated: “Public interest in the due

administration of justice requires that a judicial officer, in the exercise of his judicial function, should be able to

speak his mind freely without fear of incurring liability for damages of defamation”. The reason for this rule is

obvious. Judicial officers would not be able to perform their tasks competently if they could be sued for

defamation every time they expressed an unfavourable view about a litigant or the credibility of a witness

during the course of giving judgment.

Personal independencePersonal independence, which is also known as institutional independence, is secured by making sure that

judicial officers are satisfied with their conditions of service and will not, therefore, derogate from performing

their core functions. The personal independence of judges is determined by the following:

(a) The manner in which they are appointed. Are they simply appointed by the President or the majority party in

Parliament? Or are there mechanisms in place to ensure that judges will not be seen as mere political

appointees who are unlikely to act independently and impartially?

(b) Their terms of office. If judges are appointed for a fixed, nonrenewable period, they will not need to seek the

favour of politicians in order to be reappointed.

(c) Their security of tenure. It would have serious consequences for judicial independence if the executive were

in a position to dismiss judges more or less arbitrarily.

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(d) Their conditions of service. Politicians should not be in a position to determine the salaries of judicial

officers in an arbitrary manner. The Constitution seeks to safeguard the personal independence of judges in

the following ways:

(e) We have already seen that the Judicial Service Commission plays an important role in the appointment of

judges. The involvement of the Judicial Service Commission makes it more difficult for the executive merely to

appoint its own loyal supporters.

(f) Section 176 of the Constitution provides that judges of the Constitutional court are appointed for a non-

renewable term of 12 years. (However, they must retire at the age of 70 years.) Other judges may serve office

until the age of 75 years, or until they are discharged from active service in terms of an Act of Parliament. This

means that judges enjoy security of tenure, so that there is no need for them to seek the favour of politicians to

make sure that they keep their jobs.

(g) The Constitution makes it difficult for the executive to dismiss judges. Section 177 clearly stipulates the

circumstances under which a judicial officer may be compelled to vacate his or her position before the

termination of his or her term of office. The President may remove a judge from office only if the Judicial

Service Commission finds that he or she suffers from incapacity, is grossly incompetent or is guilty of gross

misconduct, and if the National Assembly has called for his or her removal by a resolution adopted with the

support of at least two-thirds of its members.

(h) Section 176(3) provides that the salaries, allowances and other benefits of

judicial officers may not be reduced.

ConclusionBased on your evaluation you should then have made your concluding remarks.

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