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3 National GovernmentMatthew Chaskalson

Jonathan Klaaren

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3.1 The national legislature under the interim Constitution . . . . . . . . . . . . 3--1(a) Legislative authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--1(b) Legislative authority and substantive limitations . . . . . . . . . . . . . 3--1

(i) Federalism limitations . . . . . . . . . . . . . . . . . . . . . . . 3--1 (ii) Fundamental rights limitations . . . . . . . . . . . . . . . . . . . 3--2(iii) Limitations of extraterritorial competence . . . . . . . . . . . . . 3--3(iv) Separation of powers limitations . . . . . . . . . . . . . . . . . . 3--3 (v) Delegation limitations . . . . . . . . . . . . . . . . . . . . . . . 3--4(vi) Limitations imposed by the legality principle . . . . . . . . . . . 3--6(vii) Limitations on the power to amend the Constitution . . . . . . . . 3--6

(c) Legislative authority and its procedural limitations . . . . . . . . . . . 3--6 (i) Limitations imposed by political parties and the government of

national unity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--6 (ii) Additional internal procedures . . . . . . . . . . . . . . . . . . 3--6A(iii) Required extra-parliamentary consultation . . . . . . . . . . . . . 3--7

(d) Abstract review of Bills . . . . . . . . . . . . . . . . . . . . . . . . . . 3--8

3.2 The national executive under the interim Constitution . . . . . . . . . . . . 3--9(a) The President and the Cabinet . . . . . . . . . . . . . . . . . . . . . . 3--9(b) Consultation requirements . . . . . . . . . . . . . . . . . . . . . . . 3--10

(i) Categories of presidential powers . . . . . . . . . . . . . . . . 3--10 (ii) Consultation and delegation . . . . . . . . . . . . . . . . . . . 3--11

(c) The reviewability of acts of the President . . . . . . . . . . . . . . . 3--12

3.3 The national legislature under the final Constitution . . . . . . . . . . . . 3--12(a) The National Assembly . . . . . . . . . . . . . . . . . . . . . . . . . 3--12(b) The National Council of Provinces . . . . . . . . . . . . . . . . . . . 3--13

(i) Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--13 (ii) The National Council of Provinces and the legislative process . 3--14

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Page(c) The mediation committee . . . . . . . . . . . . . . . . . . . . . . . . 3--15(d) The national legislative process . . . . . . . . . . . . . . . . . . . . . 3--15

(i) Bills amending the Constitution . . . . . . . . . . . . . . . . . 3--16 (ii) Bills affecting the provinces . . . . . . . . . . . . . . . . . . . 3--17(iii) Bills not affecting the provinces . . . . . . . . . . . . . . . . . 3--21

(e) Legislative authority and substantive limitations . . . . . . . . . . . . 3--21 (i) Federalism limitations . . . . . . . . . . . . . . . . . . . . . . 3--21 (ii) Fundamental rights limitations . . . . . . . . . . . . . . . . . . 3--21(iii) Limitations of extraterritorial competence . . . . . . . . . . . . 3--22(iv) Separation of powers limitations . . . . . . . . . . . . . . . . . 3--22 (v) Delegation limitations . . . . . . . . . . . . . . . . . . . . . . 3--22(vi) Limitations imposed by the legality principle . . . . . . . . . . 3--22(vii) Limitations on the power to amend the Constitution . . . . . . 3--22

(f) Legislative authority and procedural limitations . . . . . . . . . . . . 3--25 (i) The correct process of Bills under ss 75 and 76 . . . . . . . . . 3--25 (ii) Bills requiring extra-parliamentary consultation . . . . . . . . . 3--26

(g) Assignment of legislative power . . . . . . . . . . . . . . . . . . . 3--26A(h) Abstract review of Acts and Bills . . . . . . . . . . . . . . . . . . . . 3--27(i) Powers and privileges of Parliament . . . . . . . . . . . . . . . . . . 3--28

(i) Control over the internal proceedings of Parliament . . . . . . . 3--28 (ii) Rules and orders of the National Assembly and the NCOP . . 3--28B(iii) Parliamentary privilege . . . . . . . . . . . . . . . . . . . . . 3--28B(iv) Constitutional supremacy and the powers and privileges of

Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--28D

3.4 The national executive under the final Constitution . . . . . . . . . . . . 3--28G(a) The President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--28G

(i) Status, appointment and removal . . . . . . . . . . . . . . . . 3--28G (ii) Powers and functions . . . . . . . . . . . . . . . . . . . . . . . 3--29(iii) The reviewability of acts of the President . . . . . . . . . . . . 3--29(iv) Presidential consultation and the exercise of executive power . 3--30 (v) The constitutional veto . . . . . . . . . . . . . . . . . . . . . . 3--31

(b) The Cabinet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--31 (i) Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--31 (ii) Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--32(iii) Collective responsibility . . . . . . . . . . . . . . . . . . . . . 3--33

(c) National executive intervention . . . . . . . . . . . . . . . . . . . . . 3--34

3.5 The legality principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3--35

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CONSTITUTIONAL LAW OF SOUTH AFRICA

3.1 THE NATIONAL LEGISLATURE UNDER THE INTERIM CONSTITUTION

(a) Legislative authority

Section 37 of the interim Constitution (IC) vested the legislative authority of the Republicin Parliament. This authority was vested subject to the Constitution.1 This was a major changefrom the previous Westminster system.2 The Constitution also made it clear that Parliamentwas bound by decisions of the Constitutional Court.3

1 The Constitution gave Parliament authority to regulate its own affairs. The old rules andorders of Parliament survived the transition, but they could be amended.4 Section 58 providedfor the establishment and functioning of committees, which could include standing commit-tees.5 Section 55 provided for parliamentary powers, privileges, and immunities. Expressmention of these powers could provide greater justificatory weight when issues of parlia-mentary privilege are measured against the guarantees of individual rights.

REVISION SERVICE 2, 1998The legislative authority of Parliament was subject to limitations of two kinds.6 First, sinceParliament was bound by the Constitution, its legislative authority was substantively limitedby the Constitution. These substantive limits, such as the limitations imposed by the Bill ofRights, are discussed in the next section. Secondly, Parliament was expressly commandedby the Constitution to follow certain prescribed procedures in order validly to exercise itslegislative authority with regard to certain subject-matter. These procedural limits, such asthe limitations of separate passage by both Houses for certain types of legislation, arediscussed in the following section.

(b) Legislative authority and substantive limitations

(i) Federalism limitations

There were very few federalism-based limitations on the legislative power of Parliamentunder the interim Constitution because almost all of the legislative powers of the provinciallegislatures were powers held concurrently with Parliament.7 Section 156(1B) did, however,

1 The Constitution of the Republic of South Africa Act 200 of 1993 (s 4(2)) bound Parliament and s 37 reaffirmedthis explicitly.

2 See e g D Davis ‘Democracy ---- Its Influence upon the Process of Constitutional Interpretation’ (1994) 10SAJHR 103.

3 Section 98(4) provided: ‘A decision of the Constitutional Court shall bind all persons and all legislative,executive, and judicial organs of state.’ By contrast, in a 1987 decision the German Constitutional Court decidedthat the German legislature was not bound by the decisions of the Constitutional Court, but only by the Constitutionitself. See D Davis, M Chaskalson & J de Waal ‘The Role of Constitutional Interpretation’ in Van Wyk, Dugard, DeVilliers & Davis (eds) Rights and Constitutionalism (1994) 80--1. Perhaps reflecting a fundamental difference inan essentially common-law jurisdiction from the code system of Germany, s 98(4) precluded the German route.Parliament could not re-pass a law in exactly the same form once it had been declared unconstitutional by theConstitutional Court. However, s 98(4) explicitly mentioned only the Constitutional Court. Even in relation to theprovincial legislatures this power of binding adjudication was not applied to the Supreme Court under s 101(4).

4 Section 234(6). See below, Currie ‘Official Languages’ § 37.5 for the language used by Members of Parliament.5 Note that s 228(3) established a specific joint standing committee of Parliament on defence.6 The distinction between substantive and procedural limitations is merely one of classificatory convenience. A

classification of external and internal limits could also have been used.7 Section 126(3) did not limit the legislative power of Parliament. It just set out the circumstances in which

provincial legislation would prevail over parliamentary legislation with which it conflicted. See below, Klaaren‘Federalism’ ch 5.

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give provinces the exclusive competence to impose taxes in respect of casinos, gambling,wagering, lotteries and betting. This meant that Parliament had no legislative power to imposesuch taxes. There was also a tacit exclusion of the power of Parliament to legislate in respectof provincial official languages1 and the names of the provinces.2

2 In order to preserve the political autonomy of the provinces from the national governmentthe courts may find limitations in the interim Consitution on the capacity of the national governmentto pass legislation which obliged the provincial executives to implement national policy overprovincial policy in respect of matters over which the provinces had legislative competence.3

In the National Education Bill case4 the Constitutional Court considered an argument alongthese lines, but declined to decide the matter because it held that the Bill in question did notoblige the provincial executive authorities to implement national education policy.

(ii) Fundamental rights limitations

The sovereignty of Parliament under the interim Consitution was curtailed by the fundamen-tal rights contained in Chapter 3. Parliament’s legislative authority did not extend tolimitations of fundamental rights other than those authorized by s 33, the limitations clause.5

Impermissible limitations of fundamental rights were not confined to direct infringe-ments of those rights. Legislation which indirectly burdened fundamental rights couldalso conflict with the provisions of Chapter 3. Thus a legislative scheme which hadthe effect of limiting protected rights could be unconstitutional even if the individualpieces of legislation concerned appeared to be uncontroversial.6 Similarly, legislation couldbe invalid if it granted benefits to individuals on condition that they acted in a way whichmight be seen to compromise their fundamental rights.7 Such legislation undoubtedly

1 Section 3(5). 2 Section 124(1).3 See below, Klaaren ‘Federalism’ ch 5.4 Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of Certain

Provisions of the National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC).5 Indeed, Parliament was under a duty not only to abstain from violating fundamental rights but also under a duty

to fulfil certain rights by positive action. See C Scott & P Macklem ‘Constitutional Ropes of Sand or JusticiableGuarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania LR 1 at73--7. See also S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC), where Didcott J statedat para 16: ‘We are mindful of the multifarious demands on the public purse and the machinery of government thatflow from the urgent need for economic and social reform. But the Constitution does not envisage, and it will surelynot brook, an undue delay in the fulfilment of any promise made by it about a fundamental right.’

6 The dissenting judgment of Schreiner JA in Collins v Minister of Interior & another 1957 (1) SA 552 (A)provides South African authority for this proposition. Collins was the last of the ‘Coloured Vote’ cases. Schreiner JAruled that a legislative amendment to the composition of the Senate was unconstitutional because it was designedto circumvent a constitutional guarantee that legislation affecting the Coloured vote could be passed only with theconsent of a two-thirds majority of both Houses of Parliament. While the legislation concerned was not prima facieunconstitutional, Schreiner JA found that it was rendered unconstitutional because it formed part of a broaderlegislative scheme with an unconstitutional purpose.

7 An example of such legislation might be a taxation statute which granted rebates to soldiers who took an oathof loyalty to the government. See Speiser v Randall 357 US 513, 78 SCt 1332 (1958). This sort of case is dealt within the United States under the ‘unconstitutional conditions’ doctrine. This doctrine and the confusion surroundingits application are discussed by Kathleen M Sullivan ‘Unconstitutional Conditions’ (1989) 102 Harvard LR 1415and by Cass Sunstein The Partial Constitution (1993) chapter 10. The Canadian Supreme Court appears tohave contemplated the competence of an individual to bargain away some of his or her rights, provided that thebargaining is rational. Douglas College v Douglas/Kwantlen Faculty Association, Attorney-General of Canada et al,Interveners 77 DLR (4th) 94, [1990] 3 SCR 570 at 585.


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limited fundamental rights. Its validity therefore depended on whether or not it could satisfythe requirements of s 33.1

(iii) Limitations of extraterritorial competence

REVISION SERVICE 5, 1999Could Parliament legislate beyond the national boundaries? The answer before the interimConstitution was in the affirmative.2 This position did not appear to change on 27 April 1994.

(iv) Separation of powers limitations

The doctrine of the separation of powers limited the legislative authority of Parliament underthe interim Constitution. This was most obvious in the context of the separation between thepowers of the judicial branch of government, on the one hand, and the legislative andexecutive branches, on the other. Thus legislation which sought to bring judicial organs ofstate under the control of Parliament or the executive could be struck down under theseparation of powers doctrine even if such legislation did not conflict with any of the expressprovisions of the Constitution.3

3 Attempts by the legislature to control executive policy may also have raised separation ofpowers issues. For instance, could the legislature specify that it had to be consulted beforecertain executive action was taken? In one pre-1994 case a South African court insisted onjust such a procedure being followed.4 Such procedures are likely to have remained validunder the interim Constitution.5 The separation of powers doctrine had less force in thecontext of the interim Constitution than it has had in other jurisdictions, most notablythe United States.

1 See below, Woolman ‘Limitations’ ch 12. 2 S v Fazzie & others 1964 (4) SA 673 (A).3 As pointed out by Ackermann J in Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4)

BCLR 449 (CC) at para 105, the doctrine of separation of powers underpins the access to court rights protected byIC s 22. Thus many cases raising the separation of powers of the judicial branch of government can also be arguedunder IC s 22. Nevertheless, there remain some cases which cannot be brought within the ambit of IC s 22, but mayyet be argued on the basis of the separation of powers doctrine. See for example Ex parte Attorney-General, Namibia:In re the Constitutional Relationship between the Attorney-General and the Prosecutor-General 1995 (8) BCLR1070 (NmS), which concerned s 35 of the Criminal Procedure Act 51 of 1977. The section provided that the powersof the Prosecutor-General were to be exercised subject to the control and direction of the Attorney-General, amember of the Namibian executive. The section was held to be inconsistent with the Namibian Constitution interalia on the grounds that it allowed a member of the executive to exercise control over the prosecutorial discretionwhich was the function of the judicial branch of government. (The section was also found to be inconsistent withcertain express provisions of the Namibian Constitution.) However, not every legislative venture into the perceiveddomain of judicial decision-making is a violation of the separation of powers. See, for example, S v Dlamini; S vSchietekat; S v Joubert; S v Dladla 1999 (4) SA 623 (CC), 1999 (7) BCLR 771 (CC), 1999 (2) SACR 51 (CC) atparas 37--44. In Dlamini the Constitutional Court held that Parliament was entitled to legislate to provide guidelinesconcerning factors relevant to the grant or refusal of bail, provided that the existence of such factors or any otherfactors, and the weight to be attributed to them, was left to the judgment of the presiding judicial officer.

4 More v Minister of Co-operation and Development & another 1986 (1) SA 102 (A) (court upholds the needfor parliamentary resolution before executive can relocate a black traditional group against its will).

5 See for instance s 11(6) of the Provincial Service Commission Act 3 of 1994 (Gauteng), which requires that adecision taken by that Commission to dispense with certain procedures must be reported to the Speaker of theprovincial legislature and may be overruled by the legislature.

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(v) Delegation limitations

4The Constitutional Court ruled in the Western Cape Legislature case1 that there wereconstitutional limitations, under the interim Constitution, on the legislative authority thatParliament could delegate away. The ‘delegation doctrine’ which imposed such limitsderives from an application of the theory of separation of powers ---- the notion being thatlaw-making, as the proper domain of the legislature, should not be delegated excessively tothe executive branch of government.2 The Western Cape Legislature case concerned s 16Aof the Local Government Transition Act,3 which purported to confer on the President a powerto amend the Act itself by Proclamation. The judges of the Constitutional Court unanimouslyheld this to be an unconstitutional delegation of legislative power. All the judges recognizedthat the delegation of subordinate legislative power is a necessary feature of moderngovernment, but the court held that the extent of the delegation effected by s 16A of theLocal Government Transition Act went beyond constitutionally acceptable limits.Chaskalson P stated:

‘The legislative authority vested in Parliament under s 37 of the Constitution is expressed in wideterms ---- ‘‘to make laws for the Republic in accordance with this Constitution’’. In a modern statedetailed provisions are often required for the purposes of implementing and regulating laws, andParliament cannot be expected to deal with all such matters itself. There is nothing in theConstitution which prohibits Parliament from delegating subordinate regulatory authority to otherbodies. The power to do so is necessary for effective law-making. It is implicit in the power to makelaws for the country and I have no doubt that under our Constitution Parliament can pass legislationdelegating such legislative functions to other bodies. There is, however, a difference betweendelegating authority to make subordinate legislation within the framework of a statute under whichthe delegation is made and assigning plenary legislative power to another body, including, as s 16Adoes, the power to amend the Act under which the assignment is made.’4

In Ynuico Ltd v Minister of Trade and Industry & others5 the Constitutional Court heldthat the doctrine could not be used to challenge delegated legislation which was made before

1 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa &others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC).

2 The doctrine developed in the United States, where it was used by American courts in the 1930s to frustratethe New Deal. See Panama Refining Co v Ryan 293 US 388, 55 SCt 241 (1935) (Congress had set no policy toguide President in deciding whether to authorize administrative codes to regulate interstate shipment of oil);Schechter Poultry Corp v United States 295 US 495, 295 SCt 495 (1935) (legislation giving force of law to regulatorycodes drawn up by industry associations struck down; in general, delegation of law-making power to private groupsdisfavoured). More recently, however, the influence of the delegation doctrine in the US has weakened and caseshave turned on whether the delegated power touches constitutionally protected rights. Broad grants to administrativeagencies that do not affect constitutionally protected rights have been upheld. See Lichter v United States 334 US742, 68 SCt 1294 (1948) (statute empowering administrative agency to apply standard of ‘excessive profits’ upheldbecause sufficient administrative practice had built up to make standard specific).

In countries where the executive is accountable to the legislature the delegation doctrine has not been applied toany significant extent. See City View Press v AnCO [1980] IR 381 at 399 (Ireland) (delegation doctrine exists, butnot applied in this case) (‘the test is whether that which is challenged as an unauthorized delegation of parliamentarypower is more than a mere giving effect to principles and policies which are contained in the statute itself’); VictoriaStevedoring Co v Dignan 46 CLR 73 (1931) (Australia) (refusing to apply delegation doctrine); Hodge v The Queen(1883) App Cas 117 (Canada) (refusing to apply delegation doctrine).

3 Act 209 of 1993.4 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others

(supra) at para 51.5 1996 (3) SA 989 (CC), 1996 (6) BCLR 798 (CC).



the interim Constitution came into effect. The doctrine drew its constitutional force froms 37, which vested the legislative authority of the Republic in Parliament. Section 37 couldhave no bearing on the validity of regulations which were made before it came into existence.1

In terms of IC s 229, these regulations continued in force. As Didcott J pointed out in Ynuico,s 229 was designed to avoid the impracticality of dismantling all existing statutory law on27 April 1994. In so doing it gave continued effect to laws whose genesis was tainted.Whether that taint arose out of the racially exclusive nature of the old Parliament or the factthat legislative authority was vested in executive actors did not affect the operation of s 229.2

5 The judgment in Ynuico may be read to leave open the question of whether the delegationdoctrine could apply to regulations made after the commencement of the interim Constitutionbut in terms of an enabling statute which was passed before 27 April 1994.3 It is submittedthat the doctrine must apply to such legislation. The basis of the doctrine is that, with effectfrom 27 April 1994, the legislative authority of the Republic vested in Parliament. After thatdate no law could vest plenary legislative authority in an organ other than Parliament.Whether the law itself was passed before or after 27 April 1994 is irrelevant to this inquiry.4

Subject to the limits of the delegation doctrine, legislative interdelegation was a constitu-tionally valid option. Legislative interdelegation occurs when, in effect, Parliament lendsits power or some portion of its power to a province. As in Canada, but unlike Australia,the interim Constitution contained no express provision for legislative interdelegation.However, Constitutional Principle XIX required provision for such interdelegation

1 The interim Constitution did not have retroactive effect. See Du Plessis & others v De Klerk & another 1996(3) SA 850 (CC), 1996 (5) BCLR 658 (CC); Gardener v Whitaker 1996 (4) SA 337 (CC), 1996 (6) BCLR 775 (CC);Key v Attorney-General, Cape, & another 1996 (4) SA 187 (CC), 1996 (6) BCLR 788 (CC).

2 At para 8.3 Paragraph 5 of the judgment does not make clear the attitude of the court to this question.4 In terms of s 229 any law passed before the commencement of the Constitution continued in force subject to

the Constitution. Provisions of such a law which purported to confer plenary legislative authority on an executiveorgan of state would therefore have been of no force and effect after 27 April 1994. See, however, Janse van RensburgNO v Minister van Handel en Nywerheid 1999 (2) BCLR 204 (T), where Van Dijkhorst J reached the contraryconclusion at 213E--214B. It is respectfully submitted that the learned judge erred by approaching the problem fromthe incorrect starting point. The constitutional source of the delegation doctrine was that IC s 37 vested the legislativeauthority of the Republic in Parliament. The effect of s 37 was a constitutional principle that no law could vestplenary legislative authority in a body other than the IC Parliament. The rule that Parliament under the interimConstitution could not delegate plenary legislative authority to any other body was a rule which flowed from thisconstitutional principle, but it was not the beginning and end of the principle itself. In Janse van Rensburg VanDijkhorst J assessed the constitutionality of s 12 of the Harmful Business Practices Act 71 of 1988 by looking onlyat the delegation rule and not at the underlying constitutional principle. The applicant in Janse van Rensburg arguedthat s 12 delegated unfettered legislative authority to the Minister of Trade and Industry and was thereforeunconstitutional. Van Dijkhorst J rejected this argument with the following reasoning: because the Parliament whichhad passed s 12 was not bound by the delegation rule, the delegation of legislative authority had been valid in 1988;it was therefore preserved by IC s 229 and FC Item 2 of Schedule 6 and remained valid today. By holding that thestatus of the original delegation of legislative authority in 1988 was decisive of the validity of s 12 after 27 April1994, Van Dijkhorst J conflated the broad constitutional principle of parliamentary legislative authority with thedelegation rule which is but one manifestation of this principle. Both IC s 229 and FC Schedule 6 Item 2 preservedexisting legislation only ‘subject to the Constitution’. IC s 37 (and FC s 43(a)) created a constitutional principlethat no law could vest legislative authority in a body other than Parliament. From 27 April 1994, therefore, thevalidity of s 12 of the Harmful Business Practices Act 71 of 1988 depended not on whether it had been valid in1988, but on whether it impermissibly purported to clothe the Minister of Trade and Industry with the type oflegislative power which IC s 37 vested exclusively in Parliament. If it did, it was inconsistent with IC s 37 andbecame prospectively invalid when the interim Constitution took effect.

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in the final Constitution and there was no obvious reason to treat it as unconstitutionalunder the interim Constitution.1

(vi) Limitations imposed by the legality principle

The legality principle limited Parliament under the interim Constitution. The scope of thislimitation is discussed below.2

(vii) Limitations on the power to amend the Constitution

The interim Constitution expressly placed substantive limits on the power of Parliament toamend it.3 Section 74 stated that Parliament had no power to amend any of the provisions ofChapter 5, the chapter dealing with the adoption of a new Constitution by the ConstitutionalAssembly. Some provisions of Chapter 5 were completely unamendable,4 while the remain-ing provisions could be amended by a two-thirds majority of the Constitutional Assembly.5

(c) Legislative authority and its procedural limitations

There were three sorts of procedural limitations to legislative authority in the interim Constitu-tion. First, there were implicit restrictions relating to the strength of consensus among the partiescomposing the government of national unity. Secondly, the Constitution specified certaininternal legislative procedures in relation to certain kinds of legislation. Thirdly, requirementsof extra-parliamentary consultation were imposed on several types of legislation. In someinstances both internal procedures and extra-parliamentary consultation were required.

(i) Limitations imposed by political parties and the government of national unity

6It is clear that the interim Constitution was one where constitutional design favoured politicalconsensus among party structures. While there was no express provision for the operationof the concept of a government of national unity within the legislative branch,6 the propor-tional representation electoral system adopted for the National Assembly was one thatrecognized the importance of political parties. Indeed, it could be said that the party was amore important constitutional political unit than the individual representative. For instance,

1 That principle provided: ‘The powers and functions at the national and provincial levels of government shallinclude exclusive and concurrent powers as well as the power to perform functions for other levels of governmenton an agency or delegation basis.’

2 At § 3.5.3 There were also provisions which placed procedural restraints on the amending power of Parliament. See

below, § 3.1(c).4 Section 74(1).5 Section 74(2).6 In the initial sitting of Parliament the chairing of the standing committees (under s 58) was allocated

without reference to national unity concepts. The argument used by the ANC and the smaller parties to justifythis arrangement was that the Constitution did not extend the national unity principle into the sphere of thelegislature.



the type of proportional representation system selected allowed for no expression of voterpreferences among a party’s candidates.1

In another example of the strength of political parties s 48 provided that voters indirectlyelected the members of the Senate by voting for the provincial legislature. The selection ofthe persons to fill the positions of Senators was left to the political party. Furthermore, if amember ceased to be a member of the political party that nominated her, she had to vacateher seat in the National Assembly and be replaced by her party’s next candidate on the list.2

These provisions extended extraordinary power to political parties.3

(ii) Additional internal procedures

For legislation dealing with certain matters the interim Constitution specified additionalinternal procedures. The general rule was that a Bill was considered an ordinary Bill.4 MoneyBills ---- Bills appropriating revenue or moneys or imposing taxation ---- were subject to anumber of procedural requirements that reduced the power of the Senate.5 Bills amending the6A

1 Read with Schedule 2 and the Electoral Act 202 of 1993, s 40 dictated that the list system of proportionalrepresentation determined the membership of the National Assembly.

2 Sections 43(b) and 44. See also s 51(1)(b) and (2)(a) (similar procedures for the Senate). Section 133 wassimilar to ss 43 and 44 and required a member of the provincial legislature to vacate his or her seat upon ceasing tobe a member of the party that nominated him or her.

3 It is doubtful that a representative would have had a justiciable freedom of expression right under s 15 to counterthe action of her party in expelling her for a speech that did not toe the party line. But see Basson South Africa’sInterim Constitution: Text and Notes (1994) 77--8.

4 Section 59.5 Section 60. An exception was the Bill relating to provinces’ share of revenue collected nationally. See s 155(2).

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Constitution had to be passed by a two-thirds majority with special provisions for amend-ments affecting the position of the provinces.1 Still, the amendment process was not too cumbersometo be used, as was demonstrated by the number of amendments to the interim Constitution.2

Bills affecting the boundaries or the exercise or performance of the powers and functionsof the provinces required passage by both Houses separately and, if affecting a specificprovince, the approval of a majority of the senators of the relevant province.3 The broad languageof s 61 (‘affecting . . . performance’) might mean that whenever the central governmentexercised its power over a matter in which the provinces had concurrent jurisdiction, centralgovernment had to comply with dual passage unless it accepted that provincial legislationwould prevail in cases of conflict with the national legislation in question.4

(iii) Required extra-parliamentary consultation

7The interim Constitution required in a number of instances that certain bodies were to beconsulted with respect to certain categories of Bills. The following is a list of the categoriesof legislation with the corresponding bodies which had to be consulted:

l Parliamentary legislation contemplated in s 3(2) (extension of regional languages to thenational level) and s 3(8) (the use of official languages for the purposes of the functioningof government): the Pan South African Language Board.5

l Enactments dealing with a matter in respect of which the National Manpower Commis-sion was competent to consider and make recommendations: the National Economic,Development and Labour Council.6

l Amendments to the Constitution regarding the boundaries, or the legislative or executivecompetence of a province: the relevant provincial legislature.7

l Parliamentary legislation contemplated in s 155 regarding provincial percentages forincome tax, value-added tax or other sales tax, and other allocations to a province: theFinancial and Fiscal Commission.8

l Parliamentary legislation contemplated in s 156 regarding provincial levy powers or theauthorization of user charges: the Financial and Fiscal Commission.9

l Parliamentary legislation contemplated in s 157 regarding the raising of loans for capitalexpenditure or bridging finance: the Financial and Fiscal Commission.10

1 Section 62. 2 In the lifespan of the interim Constitution there were ten amendment Acts. 3 Section 61. 4 See below, Klaaren ‘Federalism’ ch 5. 5 Section 3(10). 6 Section 33(5). The National Manpower Commission has now been replaced by the National Economic,

Development and Labour Council (NEDLAC). See s 8 of the National Economic, Development and Labour CouncilAct 35 of 1994.

7 Section 62(2). The section required the consent of a provincial legislature to constitutional amendments whichaffected its boundaries or legislative or executive competence. Mere consultation with the relevant legislature wouldnot have sufficed. In Premier, KwaZulu-Natal, & others v President of the Republic of South Africa & others 1996(1) SA 769 (CC), 1995 (12) BCLR 1561 (CC) the Constitutional Court held that the section applied only toconstitutional amendments which were not of equal application to all provinces.

8 Section 155(3) and (4). 9 Section 156.10 Section 157. Parliamentary guarantees of any provincial or local government loan had to comply with an Act

of Parliament setting out norms and conditions for such a guarantee and the Financial and Fiscal Commission musthave made a recommendation concerning such compliance. Section 188.

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Other procedures were specific to matters involving local government and traditionalauthorities. Parliamentary legislation which materially affected the status, powers or func-tions of local governments or the boundaries of their jurisdictional areas had to be publishedfor comment in the Government Gazette before introduction in Parliament.1 Parliamentarylegislation pertaining to traditional authorities, indigenous law or the traditions and customsof traditional communities or any other matters having a bearing thereon had to be referred,after passing one House, to the Council of Traditional Leaders for comment.2 The Councilhad 30 days to comment and if it expressed opposition, a delay of at least 30 days had to beobserved before the other House could pass the Bill. Thus the Council was granted a delaying,but not a veto, power.8 Finally, note that the Human Rights Commission was required, if it was of the opinionthat any proposed legislation violated the norms of international human rights law orChapter 3, immediately to report that fact to Parliament.3 This section might impliedly haveimposed a duty on Parliament to provide the Commission with information regardingproposed legislation.4

(d) Abstract review of Bills

In terms of IC s 98(2)(d) the Consitutional Court had jurisdiction over the consitutionalityof a Bill before Parliament or a provincial legislature. Section 98(9) provided that thisjurisdiction could be exercised only at the request of the Speaker of the National Assembly,the President of the Senate, or the Speaker of a provincial legislature.5 These legislativeofficers seemed to have a general discretion to request abstract review of any Bill, but theywere obliged to make such a request when one-third of the members of the NationalAssembly, the Senate or the provincial legislature petitioned them to do so.6 Parliament couldcontrol the procedure which it followed in relation to the referral of Bills.7 In particular itcould provide that petitions should be lodged with the Speaker only after debate on a Billhad been completed.

The wording of s 98(9) did not state that all the signatories to the petition had to be partiesto the dispute which was being referred to the Constitutional Court. Nor was there any reasonto read such a requirement into the subsection. An obvious purpose of the subsection was toallow members of the legislature to obtain clarity on the constitutionality of a Bill before

1 Section 174(5). 2 Section 184.3 Section 116(2).4 Note the parallel with the Canadian procedure under, first, the Bill of Rights, and then the Charter. See Hogg

Constitutional Law of Canada sec 32.6.5 It is not clear from s 98(9) whether the Speaker of a provincial legislature could request abstract review of a

Bill before Parliament. It seems that the better reading of the section confined the power of provincial Speakers torequests for abstract review of Bills before their own provincial legislatures.

6 In Kilian v Gauteng Provincial Legislature 1999 (2) BCLR 225 (T) at 232B--233E Van Dijkhorst J held thatabstract review proceedings should be seen as part of the legislative process, and that subject to reasonable conditionsimposed by the Speaker, the legal costs of minority parties in abstract review proceedings ought accordingly to beborne by the legislature.

7 See Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of CertainProvisions of the National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC)at paras 43--4, where the Constitutional Court declined a request to lay down guidelines in this regard.



they voted on it. Members could have required this clarity without necessarily joining anydispute over the Bill that existed between the majority party and another party in Parliament.9 The abstract review jurisdiction conferred by s 98(2)(d) was limited to ‘disputes’ over theconstitutionality of a Bill. The term ‘dispute’ ‘postulate[s] the notion of the expression byparties, opposing each other in controversy, of conflicting views, claims or contentions’.1

Until the party disputing the constitutionality of the Bill had set out its contentions and thesecontentions had been rejected by another party, the law did not recognize a dispute and theConstitutional Court had no jurisdiction under s 98(2)(d).2 The ‘dispute’ requirementtherefore served to ensure that the court was not presented with applications for abstractreview unless it was impossible for the parties themselves to resolve their disagreements overthe consitutionality of a Bill.

REVISION SERVICE 2, 1998The Constitution did not explicitly regulate the process of a Bill once it had been referredto the Constitutional Court in terms of s 98(2)(d). The better view is that debate and votingon a Bill were not necessarily halted by an application for abstract review.3 It was open tothe Speaker to decide, upon receipt of a petition, whether and at what stage to suspend debateon a Bill.

3.2 THE NATIONAL EXECUTIVE UNDER THE INTERIM CONSTITUTION

(a) The President and the Cabinet

10Section 75 vested executive authority in the President, who was also the head of state in termsof s 76. The President in both capacities was subject to the Constitution.4 The President’ss 75 authority extended to all matters within the legislative competence of Parliament.

Section 88 established the Cabinet and its appointment procedures.5 No specific powerswere granted to the Cabinet, although the interim Constitution required it to be consulted ona wide range of matters. Indeed, by virtue of s 82(2) the President in consultation with theExecutive Deputy Presidents ---- and not the Cabinet ---- developed the policies of the nationalgovernment.6 Within the Cabinet, consensus decision-making was not mandated. Accordingto s 89(2), ‘[t]he Cabinet shall function in a manner which gives consideration to theconsensus-seeking spirit underlying the concept of a government of national unity as wellas the need for effective government’.

1 Durban City Council v Minister of Labour 1953 (3) SA 708 (N).2 This was reflected in Rule 13 of the Constitutional Court Rules, which provides that the Speaker or President

of the Senate must, when referring a dispute over the constitutionality of a Bill, specify precisely which provisionor provisions of the Bill is or are disputed and the grounds of the dispute.

3 The principle that Parliament controls its own proceedings supports this view. See National Education PolicyBill (supra) at paras 43--4.

4 See also s 81(1).5 In Mangope v Asmal & another 1994 (4) SA 277 (T) the court held that the Government of the Republic may

be held vicariously liable for a delict committed by a Minister in his capacity as such.6 See Basson South Africa’s Interim Constitution: Text and Notes 129.

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(b) Consultation requirements

(i) Categories of presidential powers

Section 82 granted the President specific powers and functions and divided up the President’spowers into different categories with different types of consultation. There were threecategories: sole powers, Executive Deputy President consultation powers, and Cabinetconsultation powers.

First, the President had certain sole powers in respect of the exercise of which he or shedid not need to consult any person.1 These were primarily the powers of the head of state andincluded:

l the power to assent to, sign and promulgate Bills duly passed by Parliament;l in the event of a procedural shortcoming in the legislative process, to refer a Bill passed

by Parliament back for further consideration by Parliament;l to convene meetings of the Cabinet;l to refer disputes of a constitutional nature between parties represented in Parliament or

between organs of state at any level of government to the Constitutional Court or otherappropriate institution, commission or body for resolution;

l to confer honours; andl to accredit, receive and recognize ambassadors, plenipotentiaries, diplomatic representa-

tives and other diplomatic officers, consuls and consular officers.

10 A second set of powers, those of the head of government or prime minister, were ones onwhich the President had to consult the Executive Deputy Presidents.2 These included thepower:

l to appoint ambassadors;l to appoint commissions of inquiry;l to make such appointments as may be necessary under powers conferred upon him or

her by the Constitution or any other law;l to negotiate and sign international agreements;l to proclaim referenda and plebiscites in terms of the Constitution or an Act of

Parliament; andl to pardon or reprieve offenders, either unconditionally or subject to such conditions as

he or she may deem fit, and to remit any fines, penalties or forfeitures.3

Likewise, the President was obliged to consult the Executive Deputy Presidents in the‘development and execution of the policies of the national government’ in all Cabinet mattersand in matters specially assigned to the Executive Deputy Presidents.4

1 Section 82(1).2 Section 82(2).3 Some of these powers requiring consultation with the Executive Deputy Presidents were previously royal

prerogative powers. In President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708(CC) the Constitutional Court stated at para 8 that the prerogative no longer conferred any powers on the Presidentother than those enumerated in s 82(1).

4 Section 82(2)(a)--(c). Note that s 82(2) placed conditions on the exercise of powers granted elsewhere ratherthan granting powers itself.



In the third set of powers the President exercised any other powers conferred on him orher in consultation with the Cabinet according to s 82(3).1 This set of powers was a residualset, after s 82(1) powers had also been taken into account. The presidential powers contem-plated by this section included powers assigned elsewhere in the Constitution2 and, moreimportantly, powers assigned to the President by statute. Most of the President’s powers infact derived from such a statutory source.11 In general, consultation within the Constitution was one of two possible strengths. In thestrong form consultation meant a veto. Section 233(3) provided:

‘Where in this Constitution any functionary is required to take a decision in consultation withanother functionary, such decision shall require the concurrence of such other functionary: Providedthat if such other functionary is a body of persons it shall express its concurrence in accordancewith its own decision-making procedures.’

REVISION SERVICE 5, 1999In the weak form consultation meant merely hearing the views of the other.Section 233(4) provided:

‘Where in this Constitution any functionary is required to take a decision after consultation withanother functionary, such decision shall be taken in good faith after consulting and giving seriousconsideration to the views of such other functionary.’3

Even this weak form of consultation required the consulting authority to provide adequateinformation to the consulted authority for the matter to be truly consulted upon.

It is clear that consultation with the Cabinet was the strong version. The strength of theExecutive Deputy Presidents’ consultation was not immediately answered by the text becausethe language ‘shall consult’ of s 82(2) fitted into neither of the two definitions. However, inPresident of the Republic of South Africa v Hugo4 the Constitutional Court clarified that thePresident did not need the concurrence of the Executive Deputy Presidents, but merely hadto hear their views.

(ii) Consultation and delegation

The consultation requirements of s 82 gave added weight to the constitutional requirementof governments of national unity. They served to ensure that Executive Deputy Presidentsand Ministers who were drawn from parties other than that of the President were consultedprior to the exercise of executive power by the President. No exercise of power by the Presi-dent without the consultation required by s 82 was valid unless it fell within the exceptionsset out in s 82(1).5

The scheme of s 82(3) suggested that the presidential powers it covered could not bedelegated by the President to another functionary unless that functionary was also subjectedto the requirement of acting in consultation with the Cabinet. A delegation of any of these

1 Section 82(3) provided that the Cabinet could delegate its consultation function in respect of any particularpower to one or more Ministers.

2 For example, the powers in relation to the National Defence Force granted in s 82(4) or the power to makeregulations concerning the Commission on Provincial Government in s 173.

3 This notion can be traced to the case of Colonial Secretary v Molteno School Board 27 SC 96.4 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC).5 This would follow from the importance of the consultation requirement to the principle of government of

national unity. See also Government of South Africa v Government of KwaZulu 1983 (1) SA 164 (A) and Maqomav Sebe NO & another 1987 (1) SA 483 (Ck).

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presidential powers which purported to free the delegate from consulting with the Cabinetwould have been a delegation of more powers than the President possessed.1 Moreover,it would have subverted the purpose of s 82(3): to place a check on the exercise of powersconsidered sufficiently important to have been assigned to the President.2

(c) The reviewability of acts of the President

12Under the interim Constitution, acts performed by the President were subject to judicialreview. This was established in President of the Republic of South Africa v Hugo3 whereGoldstone J emphasized that ‘the President under the interim Constitution is obliged toadhere to all of the terms of that Constitution, including the provisions of the Bill of Rights’.4

3.3 THE NATIONAL LEGISLATURE UNDER THE FINAL CONSTITUTION

(a) The National Assembly

The National Assembly is the first House of Parliament and the House to which the nationalexecutive is accountable.5 The Constitution provides that it must consist of between 350and 400 members elected by an electoral system based on a common national voters rolland producing, in general, proportional representation.6 The Assembly is chaired by theSpeaker7 who, by convention, stands above party politics and acts on behalf of the legislatureas a whole.8

Questions within the Assembly are generally decided by majority vote.9 The quorum ofthe Assembly is a majority of its members when a vote is taken on a Bill and one-third of themembers in other matters.10

1 This would be true even if the delegation were to be performed in consultation with the Cabinet. The Cabinetcannot abdicate its consultation function in respect of a power of the President which has not been delegated (seeBaxter Administrative Law (1984) 434--44). It follows that the Cabinet cannot abdicate its consultation function inrespect of a power of the President which has been delegated.

2 See the discussion of BEF (Pty) Ltd v Cape Town Municipality & others 1983 (2) SA 387 (C) below, Chaskalson& Klaaren ‘Provincial Government’ § 4.2(a)(ii).

3 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC). The case concerned a Presidential Act remitting the sentencesof prisoners who were mothers of children under 12 years. Kriegler J held that, in so doing, the President hadunconstitutionally violated the right to equality of male prisoners who were fathers of children under 12 years. Themajority of the court found that acts of the President were, in principle, reviewable. With respect to this particularAct, however, it found that the President had not violated the Bill of Rights.

4 At para 49. See also para 65, where Kriegler J stated that the lower court had ‘understated the scope of reviewunder the Constitution’ and observed that ‘ultimately, the President, as the supreme upholder and protector of theConstitution, is its servant’. (Although Kriegler J dissented from the judgment of Goldstone J, he concurred onthe issue of the general reviewability of presidential actions.)

5 Section 55(2). If the National Assembly passes a vote of no confidence in the President and the Cabinet, thePresident and other members of the Cabinet must resign. The national executive is not accountable to the NationalCouncil of Provinces. Compare s 55(2) with s 68.

6 Section 46(1). At the time of publication the relevant legislation had not been enacted. 7 Section 52. Note that the section provides also for an office of Deputy Speaker. 8 Kilian v Gauteng Provincial Legislature 1999 (2) BCLR 225 (T). 9 Section 53(1)(c). The special majorities required for amendments to the Constitution are discussed below,

§ 3.3(d)(i) and (e)(vi).10 Section 53(1).



The Assembly is the primary legislative power in Parliament.1 It can legislate over theobjections of the National Council of Provinces, by a simple majority if the legislation doesnot affect provincial interests2 and by a two-thirds majority if the legislation does affectprovincial interests.3 It can also veto any legislation passed by the National Council ofProvinces.4 Members of the Assembly and committees of the Assembly can prepare andintroduce in the Assembly any Bill other than a money Bill.5

REVISION SERVICE 2, 199813 Section 57 of the Constitution requires the Assembly to make rules providing inter aliafor the establishment of committees.6 The committees contemplated by s 57 include selectcommittees, which are the institutions to which Parliament has historically delegatedimportant aspects of its legislative powers and its powers relating to responsible government.Select committees are responsible for the detailed consideration and debate of Bills aftertheir first ‘reading’. They are also the institutions to which public comment on Bills is usuallyaddressed. Outside the legislative process select committees have the powers to summon anyperson to appear before them to give evidence or to produce documents and to require organsof state to report to them.7 Through the use of these powers the committees are, in practice,important institutions of responsible government.

(b) The National Council of Provinces

The second House of Parliament is the National Council of Provinces (NCOP). The NCOP,as its name suggests, aims to give the provinces representation in the national legislativeprocess. Its composition, powers and processes are designed to offer more effective nationalrepresentation for provincial interests than was provided by the Senate under the interimConstitution.8

Although the primary function of the NCOP is legislative, it has the secondary role ofproviding a national forum for consideration of issues affecting provinces.9 The latter roledistinguishes the NCOP from the National Assembly. Another important difference betweenthe Houses is that the NCOP is not an organ of responsible government. The nationalexecutive is accountable only to the National Assembly and not to the NCOP.10

(i) Composition

The National Council of Provinces comprises nine provincial delegations11 of ten memberseach. The delegates are selected by the provincial legislatures on the basis of party political

1 The national legislative process is discussed in more detail below, § 3.3(d). 2 Section 75. 3 Section 76(1) and (2). 4 Section 76(2)(i). 5 Sections 55(1)(b) and s 73(2). Only the Minister of Finance may introduce a money Bill in the Assembly. 6 Section 57(1)(b) and 57(2)(a). 7 Section 56. 8 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic

of South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at paras 318--33, particularly para 331. 9 Section 42(4). 10 Section 55(2).11 Section 60(1). Provision is made in s 67 for a tenth delegation representing local government to participate in

the deliberations of the National Council of Provinces when local government matters are discussed. The localgovernment delegation does not have voting rights.

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proportional representation.1 Each delegation has six permanent members,2 but even thesemembers are subject to recall by the party which nominated them if they lose the confidenceof the provincial legislature.3 The balance of the delegation is composed of four specialmembers who are members of the provincial legislature sent to participate in particularNCOP business.4 Voting within the NCOP takes place by delegation. Each provincialdelegation casts one vote in accordance with a provincial mandate determined by theprovincial legislature5 and a resolution requires the votes of five provinces to be adopted.6

This process subordinates party positions to those of the province as a whole.7 The purposeis clearly to enhance the representation of provincial interests within the NCOP and to preventthe Council from becoming a second House of Assembly in which the national political partyWhip prevails over provincial concerns.8

(ii) The National Council of Provinces and the legislative process

14The National Council of Provinces exercises a veto over certain constitutional amendments.9

The ordinary legislative powers of the National Council of Provinces are strongest withrespect to legislation affecting the provinces.10 Where there is a dispute between the NCOPand the National Assembly regarding such legislation, mediation between the two housestakes place and, unless a settlement is reached, the National Assembly can pass the legislationonly with a two-thirds majority.11 Where there is a dispute between the NCOP and theNational Assembly regarding other legislation, no mediation takes place and the Assemblyis free to enact the legislation by simple majority.

1 Section 61(1) read with Part B of Schedule 3, which sets out a formula for determining the representation ofparties in the provincial delegations. Item 7 of Schedule 6 specifies the number of special delegates and permanentdelegates to which the respective parties are entitled in each province. Item 7 applies only for the duration of theterm of office of each provincial legislature. Once a new legislature is elected the distribution of special andpermanent delegates will be governed by national legislation. See s 61(2).

2 The presence of permanent delegates in the NCOP will provide a continuous political presence in the NCOPto prevent its legislative process from being taken over by civil servants. The German Bundesrat has no permanentdelegates and tends to be run by civil servants.

3 Section 62(4)(c). 4 Section 60(2)(a). 5 Section 65(1)(a). The only exception to this rule is the voting procedure on legislation which does not relate

to provincial matters. Here there is no delegation vote and individual members cast separate votes (s 75(2)).Section 65(2) requires Parliament to pass national legislation which will provide a uniform procedure by whichprovincial legislatures will mandate delegations to cast their votes.

6 Section 65(1)(b). 7 It also means that the presence in the National Council of Provinces of individual members of provincial

delegations is frequently unnecessary. Hence there is no requirement that a minimum number of members of theCouncil must be present before votes can take place. Compare s 53(1)(b), which requires the presence of at least athird of the members of the National Assembly before a vote can be taken on any issue.

8 This was perceived to have been one of the failings of the Senate. Thus counsel for the Constitutional Assemblyin the Certification of the Constitution, 1996 case (supra) at para 320 described the Senate as ‘a mirror image ofthe National Assembly’.

9 See below, § 3.4(e)(vi).10 This category encompasses all of the matters in respect of which the NCOP passes legislation in terms of s 76.

See below, § 3.4(d)(ii).11 The legislative process is discussed in detail below, § 3.4(d).



The different powers of the NCOP with respect to legislation on provincial matters andother legislation are reflected in different legislative processes within the NCOP. The processin the NCOP with respect to ‘provincial’ legislation involves the execution of a provincialmandate, with voting taking place by delegation and not by member.1 Because the vote ofthe provincial delegation is determined by a decision of the provincial legislature, there isno need for a substantial committee process in the Council itself on ‘provincial’ legislation.2

For the most part, select committees on provincial matters in the Council are likely to be aforum for special delegates to attempt to reach agreement on a Bill on the basis of thenegotiating mandates given to them by their respective provincial legislatures.3 The mandatednature of the legislative process on Bills involving provincial matters also implies that thereis limited scope for debate over such Bills in the Council as a whole. For the purposes ofpublic accountability and transparency, it is recommended that delegations should givedetailed explanations in Council of the reasons for their vote on Bills involving provincialmatters. This should, however, be distinguished from debating the merits of the Bill. Suchdebate would, for the most part, be irrelevant to the legislative process if delegates are votingon the basis of provincial mandates.15 In the case of non-provincial legislation the considerations outlined above do not applybecause voting within the Council takes place by individual member4 and the provincialmandate does not operate.5

(c) The mediation committee

Disputes between the National Assembly and the NCOP relating to the adoption ofBills concerning provincial matters are referred to a mediation committee. The mediationcommittee comprises nine members of the House of Assembly proportionally representingthe parties in that House and one delegate from each provincial delegation in the NCOP. Tobe carried, decisions in the mediation committee require the support of at least five Assemblymembers and five NCOP members.

(d) The national legislative process

The Constitution creates three different legislative processes. The processes are designed todeal differently with the enactment of amendments to the Constitution, Bills affectingprovinces, and other Bills. The three processes are illustrated in diagramatic form inFigures 3.1, 3.2, 3.3 and 3.4.6 A narrative description of the three processes follows below.

1 Section 65(1).2 One possible NCOP committee function would be to summon the Cabinet member promoting the Bill to give

answers to questions on the Bill where they are required. The answers could then be used to inform any provincialdebate on the Bill. Provincial portfolio committees may not have the power to require the attendance of nationalMinisters (s 115 is open to conflicting interpretations in this regard), but NCOP committees do (s 66(2)).

3 They will not be a forum for inviting public comment on legislation. Public comment at the Council itself can servelittle purpose when delegations vote in accordance with a mandate which is determined by their provincial legislatures.

4 Section 75(2).5 In terms of s 65(2) it appears that the mandating law will cover only those cases where the provincial delegation

casts a single vote.6 Figures 3.1, 3.2, 3.3 and 3.4 are based on diagrams prepared by Mark Phillips for the Gauteng Legislative

NCOP Workshop, October 1996.

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(i) Bills amending the Constitution

16Constitutional amendments may be introduced only in the National Assembly.1 At least thirtydays prior to the introduction of a Bill to amend the Constitution, particulars of the Bill mustbe published in the Gazette for public comment and must be submitted to the provinciallegislatures for their views.2 Any written comments on an amendment Bill received fromthe public or the provincial legislatures must be tabled in the National Assembly on theintroduction of the Bill.

The National Assembly considers all Bills to amend the Constitution and may passthem only with a supporting vote of two-thirds of its members.3 Constitutional amend-ments affecting the founding provisions of s 1,4 the Bill of Rights,5 the NCOP,6 and other

1 Compare s 73(1) and s 73(3) read with s 76(3). 2 Section 74(5).3 Section 74(2) and (3). Section 74(1) provides that a Bill to amend the founding provisions of s 1 may be passed

only with a vote of 75 per cent of the members of the National Assembly.4 Section 74(1). 5 Section 74(2).6 Section 74(3)(b)(i).



provincial matters1 may not be passed by Parliament without the support of a vote of six ofthe nine provinces in the NCOP.2 The provisions giving this veto power to the NCOP are notthemselves directly entrenched against amendment. However, they are indirectly entrenchedbecause any amendment of such a provision would be an amendment which affects thepowers of the Council and would therefore have to be passed with the support of six provincesin the Council.3

17 The Constitution does not expressly regulate the process of amendment Bills in respectof which the NCOP has a power of veto. One can assume that as these Bills must beintroduced in the National Assembly they are considered first by the Assembly and then, ifadopted by the requisite majority, are submitted to the NCOP to be considered there. TheNCOP is not required to vote on any other Bill to amend the Constitution, but particulars ofsuch a Bill must be submitted to the NCOP for public debate at least thirty days before theBill is introduced in the Assembly.4

(ii) Bills affecting the provinces

Section 76 identifies a category of Bills affecting the provinces. The category is dominatedby Bills relating to Schedule 4 matters,5 but also includes Bills relating to a range of specificmatters which are enumerated in the section: the provincial mandate for NCOP delegations,6

organized local government,7 the Public Protector, the Public Service Commission, the publicservice and public administrations,8 the Financial and Fiscal Commission,9 Schedule 5matters,10 and matters which are contemplated in Chapter 13 of the Constitution and whichaffect provincial finances.11

18 Bills affecting the provinces may be tabled in either House of Parliament. A Bill whichis passed by one House must be referred to the other House, which may then pass it, pass anamended version of it, or reject it. If both Houses pass the same version of the Bill, it issubmitted to the President for assent.12 If the second House passes an amended version ofthe Bill passed by the House in which the Bill originated, the amended version is referred tothat House for its consideration and, if it is passed, is submitted to the President for assent.13

1 Section 74(3)(b)(ii) and (iii). 2 A Bill amending the Constitution which affects only a specific province or provinces cannot be passed unless

it is approved by the legislature or legislatures of the province or provinces concerned (s 74(8)). 3 Ex parte the Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the

Constitution of the Republic of South Africa, 1996 1997 (2) SA 97 (CC), 1997 (1) BCLR 1 (CC) at para 70. 4 Section 74(5)(c). Paragraph (c) of s 74(5) makes no express provision for the proceedings of the NCOP debate

to be tabled in the Assembly when the Bill is considered (compare paras (a) and (b)), but this is probably implicitin s 74(5).

5 These are the matters in respect of which there is concurrent national and provincial legislative competence. 6 Section 76(3)(a) read with s 65(2). 7 Section 76(3)(b) read with s 163. 8 Section 76(3)(c)--(f) read with ss 182 and 195--197. 9 Section 76(4) read with s 220(3).10 Section 76(4) read with s 44(2). These are the Bills concerning matters in respect of which Parliament is able

to intervene in areas which otherwise fall within the exclusive legislative competence of the provinces.11 Section 76(4). Money Bills are excluded from this category of Bills. Section 77 provides that they are passed

in accordance with the procedures of s 75.12 Section 76(1)(b) and 76(2)(b). 13 Section 76(1)(c) and 76(2)(c).

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19

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20 In all cases where the two Houses do not agree on a single version of the Bill the matteris referred to the mediation committee.1 The mediation committee may agree on the Bill inthe form passed by either House or in another form.2 If the mediation committee fails to agreeon any version of the Bill within thirty days, the Bill lapses unless it originated in theAssembly and is again passed by the Assembly with the support of two-thirds of itsmembers.3 If the mediation committee does agree on a version of the Bill, the Bill must be

1 Section 76(1)(d) and 76(2)(d). 2 Section 76(1)(d) and 76(2)(d). 3 Section 76(1)(e) and 76(2)(e).



referred to the House or Houses which did not pass it in the version accepted by the mediationcommittee, and, if passed by the relevant House or Houses, is submitted to the President forassent.1 If the Bill as agreed by the mediation committee is not passed by the relevant Houseor Houses, it lapses unless it (or an earlier version of the Bill passed by the Assembly) ispassed again by the Assembly with the support of two-thirds of its members.2

(iii) Bills not affecting the provinces

21Money Bills3 and Bills other than those described in § 3.3(d)(i) and (ii) above may beintroduced only in the National Assembly. If such a Bill is passed by the Assembly, it mustbe referred to the NCOP, which considers the Bill and votes on it by individual member ratherthan delegation.4 If the NCOP passes the Bill, it is submitted to the President for assent. Ifthe NCOP rejects the Bill or passes an amended version of the Bill, the Bill is returned tothe Assembly for reconsideration and the Assembly may pass the Bill with or without anyamendments proposed by the NCOP or may let the Bill lapse.5 A Bill passed by the Assemblyin any form after a referral from the NCOP is submitted to the President for assent.6

(e) Legislative authority and substantive limitations

(i) Federalism limitations

REVISION SERVICE 5, 1999In a significant departure from the interim Constitution, the system of federalism embodiedin the final Constitution imposes clear limitations on the legislative power of Parliament.Under the interim Constitution the legislative competence of Parliament was plenary sub-ject only to a few insignificant exceptions, where provincial legislative competence wasexclusive.7 Under the final Constitution, however, Parliament has no legislative competenceover matters within the functional areas listed in Schedule 5 unless the exceptional circum-stances set out in s 44(2) apply. This limitation on the legislative authority of Parliament isdiscussed in detail below.8

(ii) Fundamental rights limitations

The fundamental rights limitations on the legislative authority of Parliament are discussedgenerally above9 and in relation to particular fundamental rights below.10 Of particularsignificance under the final Constitution is the duty placed on Parliament not only to refrainfrom interfering with fundamental rights but also to give effect to fundamental rights bypositive action. This duty is stated generally with respect to the Bill of Rights in s 7(2). It isalso repeated specifically in many cases.11

1 Section 76(1)(g) and (h) and 76(2)(g) and (h). 2 Section 76(1)(i) and (j) and 76(2)(i). 3 Section 77(2). A money Bill is one which appropriates revenue or imposes taxes (s 77(1)). 4 Section 75(2). 5 Section 75(1)(c). 6 Section 75(1)(d). 7 See above, § 3.1(b)(i). 8 See below, Klaaren ‘Federalism’ ch 5. 9 See above, § 3.1(b)(ii). 10 See below, chs 14--40.11 See, for example, s 9(4) (equality and private discrimination), s 24(b) (environmental rights), s 25(5)--(7)

(land rights), s 26(2) (housing), s 27(2) (health, food, water, and social security), s 32(2) (access to information),and s 33(3) (just administrative action).

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(iii) Limitations of extraterritorial competence

In respect of the interim Constitution we have suggested that Parliament has the authority tolegislate concerning matters beyond the national boundaries of South Africa.1 It seems clearthat Parliament has this power under the final Constitution as well.

(iv) Separation of powers limitations

22This matter is discussed in relation to the interim Constitution above, § 3.1(b)(iv). The dis-cussion applies equally to the situation under the final Constitution.

(v) Delegation limitations

This matter is discussed in relation to the interim Constitution above, § 3.1(b)(v). The dis-cussion applies equally to the situation under the final Constitution.

Section 44(1)(a)(iii) allows Parliament to assign to provincial or local governments anyof its legislative powers other than its power to amend the Constitution. Thus legislativeinterdelegation is clearly permitted under the final Constitution.

(vi) Limitations imposed by the legality principle

The legality principle limits Parliament under the final Constitution. The scope of thislimitation is discussed below.2

(vii) Limitations on the power to amend the Constitution

There are no expressly stated substantive limits on the power of Parliament to amend thefinal Constitution.3 It might be argued that the Constitutional Principles contained inSchedule IV to the interim Constitution place such limits on Parliament’s amending power.The Constitutional Principles bound the Constitutional Assembly when it drew up the finalConstitution. The final Constitution could not take effect until the Constitutional Court hadcertified that it complied with all the Principles contained in Schedule IV.4 Indeed, the first

1 See above, § 3.1(b)(iii).2 At § 3.5.3 Compare s 74 of the interim Constitution, which stated that Parliament had no power to amend any of the

provisions of Chapter 5, the chapter dealing with the adoption of the final Constitution by the ConstitutionalAssembly. Some provisions of Chapter 5 of the Constitution were completely unamendable (s 74(1)), while theremaining provisions could be amended only by a two-thirds majority of the Constitutional Assembly (s 74(2)).

There are procedural restraints on the amending power of Parliament under the final Constitution. These arediscussed above, § 3.3(d)(i).

4 Section 71(2) of the interim Constitution.



constitutional text adopted by the Constitutional Assembly on 8 May 1996 did not becomethe final Constitution because the Constitutional Court was unable to certify that it compliedwith all the Constitutional Principles.1 It would appear anomalous to allow Parliament nowto amend the final Constitution so as to introduce provisions which do not comply withthe Constitutional Principles, and which thus could not have formed part of the original textof the final Constitution. This anomaly, however, appears to be a necessary product of thetwo-stage process by which South Africa travelled from apartheid to constitutional demo-cracy. The Constitutional Principles provided a framework designed for transition and thuswere a crucial component of the interim Constitution.2 Now that the transitional process has

22A

1 The judgment of the court refusing certification is reported as Ex parte Chairperson of the ConstitutionalAssembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC), 1996(10) BCLR 1253 (CC).

2 Certification of the Constitution, 1996 (supra) at paras 12--13.

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been completed, however, the instrument from which they derived their authority has beenrepealed and they have no immediate constitutional status.1 This appears to havebeen recognized in the Principles themselves. Principle II, for example, which requires thatthe Bill of Rights be entrenched and justiciable, presupposes that amendments to the finalConstitution will not necessarily have to comply with the principles. If this was not the case,Principle II (like all the other Principles) would be self-entrenching, and there would be noneed specifically to provide that the Bill of Rights must be entrenched.2 This is not simplyan issue of legal logic ---- it is a political necessity. The Constitutional Principles reflectedparticular concerns of the negotiating parties who drafted the interim Constitution in 1993.The constitutional development of South African law cannot forever be limited by thosehistorically specific concerns.

REVISION SERVICE 2, 199823 While the Constitutional Principles do not limit Parliament in the manner in whichthey limited the power of the Constitutional Assembly to draft the final Constitution, theymay continue to exercise some indirect effect on the power of Parliament to amend theConstitution if the ‘basic structure’ doctrine of constitutional amendment is adopted in SouthAfrican law. This doctrine originates in India, where the Supreme Court has held thatthere are certain implied substantive limitations on the power of Parliament to amend theConstitution. Article 368 of the Indian Constitution states the following:

‘(1) Notwithstanding anything in the Constitution, Parliament may in exercise of its constituentpower amend by way of addition, variation or repeal any provision of this Constitution inaccordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for thepurpose in either House of Parliament, and when the Bill is passed in each House by a majorityof the total membership of that House and by a majority of not less than two-thirds of themembers of that House present and voting, it shall be presented to the President who shall givehis assent to the Bill and thereupon, the Constitution shall stand amended in accordance withthe terms of the Bill.’

Although art 368 appears to confer an unlimited power of amendment on the IndianParliament, the Indian Supreme Court has read into the article an implied limitation on thepower of amendment. In Kesavananda v State of Kerala3 the court held that the amending

1 If amendments to the final Constitution formed part of a scheme originating in the period of the interimConstitution to circumvent the Constitutional Principles in fraudem legis, they could be challenged. See, forexample, the dissenting judgment of Schreiner JA in Collins v Minister of Interior & another 1957 (1) SA 552 (A).In respect of such amendments the principles would be relevant not because they had any continuing status butbecause the amendments formed part of a broader transaction designed to frustrate the purposes of the interimConstitution at a time when the interim Constitution was in force. There will be obvious, but not insurmountable,problems relating to proof of such an unconstitutional purpose. For example, we might expect a court to infer sucha purpose if a constitutional amendment passed early in the lifespan of the final Constitution purported to reintroduceprovisions similar to those which were held by the Constitutional Court not to comply with the ConstitutionalPrinciples in Certification of the Constitution, 1996 (supra).

2 Principles XVIII.3 and XVIII.4 also presuppose that amendments to the final Constitution will not need tocomply with the Constitutional Principles. The former provides that the boundaries of the provinces in the finalConstitution shall be the same as those established in the interim Constitution. The latter sets out certain requirementsfor amendments to the final Constitution affecting the boundaries of the provinces. If Principle XVIII.3 hadcontinuing effect, there would have been no need for Principle XVIII.4 because amendments to the boundaries ofthe provinces would not have been possible.

3 AIR 1973 SC 1461.

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power conferred by art 368 did not extend to any amendment which would alter the basicstructure of the constitution.1 Khanna J stated the following:2

‘We may now deal with the question as to what is the scope of the power of amendment underArticle 368. This would depend upon the connotation of the word ‘‘amendment’’. Question hasbeen posed during arguments as to whether the power to amend under the above article includesthe power to completely abrogate the Constitution and replace it by an entirely new Constitution.The answer to the above question, in my opinion, should be in the negative . . . Although it ispermissible under the power of amendment to effect changes, howsoever important, and to adaptthe system to the requirements of changing conditions, it is not permissible to touch the foundationor to alter the basic institutional pattern.’

24The basic structure doctrine has been confirmed by the Indian Supreme Court in later cases.The doctrine is, however, applied with caution. For the most part it has been invoked by theSupreme Court to strike down only those constitutional amendments which affect the ruleof law and the separation of powers between the judiciary and the legislature.3 Outside ofthis domain the court has allowed Parliament an almost unfettered power of amendment.Even the repeal of particular fundamental rights has been held not to affect the basic structureof the Constitution.4

In Premier, KwaZulu-Natal, & others v President of the Republic of South Africa & others5

the Constitutional Court left open the possibility that it might subsequently incorporate thebasic structure doctrine into South African constitutional law, but held that the specificconstitutional amendments which were being challenged could not possibly be described asamendments which violated the basic structure of the interim Constitution.6 If the basicstructure doctrine is incorporated into South African law, it is likely that for the foreseeablefuture at least the Constitutional Principles are likely to play a role in shaping judicialconceptions of the basic structure of the South African Constitution.7

1 The German Basic Law contains an express provision to this effect. Article 79(3) states: ‘Amendments to thisBasic Law affecting . . . the principles laid down in Articles 1 and 20 shall be prohibited.’ The basic structure doctrinehas, however, been rejected by the courts of Sri Lanka and Singapore. See In re Thirteenth Amendment to theConstitution and the Provincial Councils Bill [1990] LRC (Const) 1 at 13h--14g and Teo Soh Lung v Minister forHome Affairs & others [1990] LRC (Const) 490 respectively.

2 At 1859--1860, para 1437.3 See, for example, Indira Gandhi v Raj Narain AIR 1975 SC 2299; Minerva Mills v Union of India AIR 1980

SC 1789; SP Gupta v President of India AIR 1982 SC 149.4 In the case which first recognized the doctrine the repeal of the right to property was held not to affect the basic

structure of the constitution. See Kesavananda v State of Kerala AIR 1973 SC 1461.5 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC).6 Premier, KwaZulu-Natal, & others v President of the Republic of South Africa & others (supra) at para 49.7 This may have been anticipated inadvertently by the Constitutional Court in the Certification of the Constitution,

1996 judgment (supra). In assessing whether the first constitutional text adopted by the Constitutional Assemblycomplied with the Constitutional Principles the Constitutional Court chose to conduct two separate enquiries:

‘First, are the basic structures and premises of the NT in accordance with those contemplated by the CPs? . . . Ifthe basic structures and premises of the NT do indeed comply with the CPs then, and then only, does the secondquestion arise. Do the details of the NT comply with all the CPs?’

[continued on page 3--25]



25 One potential barrier to the adoption of the basic structure doctrine under the finalConstitution is s 74(1), which expressly contemplates the amendment of s 1, the provisionwhich sets out the founding values of the Republic of South Africa.1 If the founding valuesof s 1 are amendable, albeit only by a vote with the support of 75 per cent of the House ofAssembly and the support of six provinces in the NCOP, it is difficult to argue that otherprovisions of the final Constitution are unamendable because such other amendments mightimplicate the basic structure of the Constitution. However, it may be possible to reconciles 74(1) with the basic structure doctrine by reading s 1 as shaping the operation of thatdoctrine. If s 1 (possibly informed by the Constitutional Principles) is interpreted to delimitthe basic structure of the Constitution, amendments inconsistent with the values of s 1 wouldbe impermissible under the basic structure doctrine unless s 1 itself was amended by thespecial provisions of s 74(1).

(f) Legislative authority and procedural limitations

(i) The correct process of Bills under ss 75 and 76

REVISION SERVICE 5, 1999The different procedures prescribed by the Constitution in cases of Bills affecting theprovinces and other Bills create a problem which was probably not contemplated bythe Constitutional Assembly. In order to enact a Bill Parliament has to determine correctlyat the outset of the legislative process whether the Bill falls to be processed by s 75 or s 76.This may seem simple, but it is not. In most cases it involves the correct characterization ofthe subject-matter of the Bill and the correct classification of that subject-matter relative tothe categories in Schedules 4 and 5. The difficulties inherent in such an exercise are discussedbelow.2 For present purposes it is sufficient to observe that Parliament has no margin for errorin its determination of the section under which a Bill is to be enacted. If it deals, by way ofthe procedures of s 75, with a Bill which, correctly characterized, is one affecting theprovinces, the Bill is not properly enacted and does not become law.3 The same consequence

The Court then proceeded to set out fourteen elements which it held were fundamental to the basic structure ofthe Constitution contemplated by the Constitutional Principles: Certification of the Constitution, 1996 (supra) atparas 44--5. It is extremely unlikely that the Constitutional Court, in so doing, was intending definitively to set outa basic structure of a new Constitution which would be unamendable. (The first certification judgment ischaracterized by the reluctance of the court to make any statements which might subsequently bind it to aninterpretation of the Constitution.) Nevertheless, the unfortunate use of the term ‘basic structures’ in this contextraises the possibility of drawing on the Constitutional Principles to inform any basic structure doctrine which isadopted with respect to constitutional amendments.

1 These are the following:‘(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.(b) Non-racialism and non-sexism.(c) Supremacy of the Constitution and the rule of law.(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of

democratic government, to ensure accountability, responsiveness and openness.’2 See below, Klaaren ‘Federalism’ ch 5.3 Parliament has no powers to enact legislation otherwise than in accordance with the procedures set out in the

Constitution. This follows from s 44(4) which states the following:‘When exercising its legislative authority, Parliament is bound only by the Constitution, and must act inaccordance with, and within the limits of, the Constitution.’See Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others

1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at paras 62 and 100, where Chaskalson P discussed thepredecessor of s 44(4), s 37 of the interim Constitution.

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follows the process by way of s 76 of a Bill which, properly characterized, is not one affectingthe provinces. It may be thought that, because s 76 provides a more onerous procedure,Parliament could protect itself by adopting the s 76 procedure whenever there is any doubtas to the correct procedure to be followed in passing a Bill. This, however, is not so. Section76 is not merely a more onerous procedure. It is also a different procedure. Thus, if a Bill isproperly characterized as a s 75 Bill, it must be enacted by a process in which the NationalCouncil of Provinces votes by individual members and not by provincial delegations.1

Similarly, it may not be enacted by a process in which the Mediation Committee plays anyrole.2 Adopting the more onerous legislative procedures of s 76 for a Bill which oughtproperly to be enacted by the s 75 procedure would result in the invalidity of any purportedenactment of the Bill in just the same way as would the adoption of s 75 procedures for as 76 Bill.26 The problem presented by ss 75 and 76 is constitutional, and cannot be remedied bypolitical agreements on an ad hoc basis.3 Legislation which is incorrectly characterized andthus passed by the inappropriate procedure will be unconstitutional and invalid. Even if allthe political parties agree that a particular Bill should be dealt with under a particular section,if the Bill, objectively, is one which ought to have been processed under the other section, itwill remain open to members of the public to challenge the validity of any law which purportsto have been created by the enactment of the Bill.

(ii) Bills requiring extra-parliamentary consultation

The final Constitution provides that certain categories of Bills may not be passed byParliament unless appropriate bodies have been consulted or have had the opportunityto make representations beforehand.4 The following is a list of the categories with thecorresponding bodies to be consulted:

l Bills affecting the status, institutions, powers or functions of local government: organizedlocal government, municipalities and other interested parties (s 154(2));

l Bills providing for the equitable distribution of national revenue between national,provincial and local governments: provincial governments, organized local governmentand the Financial and Fiscal Commission (s 214(2));

l Bills regulating the powers of national, provincial and local governments to raise and toguarantee loans: the Financial and Fiscal Commission (ss 218(2) and 230(2));

1 Section 75(2). Compare section 65(1).2 Compare paragraphs (d) to (h) of subsections (1) and (2) of section 76.3 See Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others

1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 100:‘Constitutional cases cannot be decided on the basis that Parliament . . . acted in good faith or on the basis thatthere was no objection to action taken at the time that it was carried out. It is of crucial importance at this earlystage of the development of our new constitutional order to establish respect for the principle that the Constitutionis supreme.’4 Note that Parliament has no general obligation to hear interested parties before it decides whether or not to

enact a Bill. See Tobacco Institute of Southern Africa v Minister of Health 1998 (4) SA 745 (C), 1999 (1) BCLR83 (C).



l Bills providing a framework for the salaries, allowances and benefits of elected repre-sentatives and traditional leaders: the commission on the remuneration of electedrepresentatives and traditional leaders1 (s 219(3));

l Bills regulating the taxing powers of provinces and local governments: the Financialand Fiscal Commission (ss 228(2)(b) and 229(5)).

(g) Assignment of legislative power

26ASection 44(1)(a)(iii) of the final Constitution allows the National Assembly to assign any ofits legislative powers to a provincial legislature or to a municipal council. The assignment oflegislative competence proceeds by Act of Parliament.2 An assignment extends legislativepowers to the provincial legislature for as long as the Act of Parliament is in force. If the Actwere repealed, provincial laws which had already been made under it would continue to bevalid, but the province would not be able to make any further laws in respect of matterscovered by the Act because it would no longer have the assigned legislative competence todo so.

1 This commission is to be established under s 219(2).2 It might be argued that the assignment of legislative power could take place by proclamation. There are,

however, indications in the Constitution that this is not permissible. Section 104(1)(b)(iii) provides that assignmentmust take place by ‘national legislation’. This suggests an Act of Parliament rather than a proclamation. Moreover,s 44(1)(a)(iii) vests the power to assign legislative competence in the National Assembly. There is no correspondingpower of assignment vested in the President or any other functionary who makes proclamations.

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National legislation prevails over conflicting provincial laws which are made under anassigned legislative competence,1 but does not invalidate that legislation. Parliament doesnot have the legislative competence to repeal provincial laws whether those laws are madeunder an original or an assigned competence.2

(h) Abstract review of Acts and Bills

27Unlike the interim Constitution,3 the final Constitution makes no provision for abstractjudicial review of Bills by the Constitutional Court at the instance of Members of Parliament.At the end of the legislative process the President may refer a Bill to the Constitutional Courtfor a decision on its constitutionality, but he or she may do so only if the Bill has first beenremitted to the National Assembly for reconsideration and Parliament has failed to addressthe concerns relating to the constitutionality of the Bill despite having been given theopportunity to do so.4

Section 80 allows one third of the members of the Assembly to apply for abstract reviewof an Act within thirty days of the date on which the President assented to the Act and signedit. When it receives an application for abstract review the Constitutional Court may grant aninterim order suspending the operation of the Act, or those sections of it which are subjectto review, until the main application has been decided. The discretion of the Court in thisregard is limited to cases where the application has reasonable prospects of success and theinterests of justice require the suspension of the operation of the legislation.5

The changes from the interim Constitution to the final Constitution concerning abstractreview are to be welcomed. Sections 79 and 80 of the final Constitution have none of theuncertainties of s 98(2)(d) and 98(9) of the interim Constitution6 and ensure that a minorityin the legislature is unable to interfere with the legislative process by applying for the review

1 A conflict between provincial legislation of this nature and a national law would not fall under s 146 or s 147(2)because the provincial legislation does not relate to matters within Schedules 4 and 5. Thus the conflict would, inall likelihood, be one which ‘cannot be resolved by a court’ within the meaning of s 148, and in terms of that sectionthe national legislation would prevail.

2 See Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of CertainProvisions of the National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC)at paras 16--19. See also s 149.

3 See above, § 3.1(d).4 Sections 79(1), 79(4)(b), 84(2)(b) and 84(2)(c). See also Rule 13 of the Rules of the Constitutional Court, which

governs the procedure to be followed in cases of referral of a Bill.5 Section 80(3). See also Rule 14 of the Rules of the Constitutional Court, which governs the procedure to be

followed in cases of abstract review of an Act.6 See above, § 3.1(d).

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of Bills before they are enacted.1 Section 80 places in the hands of the Constitutional Courtthe decision whether legislation will operate pending resolution of the challenge to itsconstitutionality and provides the Court with an appropriate framework within which to takethis decision.

(i) Powers and privileges of Parliament

(i) Control over the internal proceedings of Parliament

28Sections 57(1)(a) and 70(1)(a) of the Constitution confer on the National Assembly and theNCOP, respectively, the constitutional power to control their internal arrangements. Thispower is constrained by other provisions of the Constitution, in particular ss 59 and 72, whichoblige the Assembly and the NCOP to facilitate public involvement in their processes and toconduct their business in an open manner and in public. The Assembly and the NCOP areentitled to take reasonable measures to regulate public and media access to their proceedings,2

but the general public and the media may be excluded from the proceedings of committeesof the Assembly and the NCOP only when it is reasonable and justifiable to do so in an openand democratic society.3 Exercise of the power conferred by ss 57(1)(a) and 70(1)(a) is alsosubject to the Bill of Rights.4

In De Lille & another v Speaker of the National Assembly5 the Cape Provincial Divisionrejected an argument that s 57(1)(a) authorized the Assembly to exercise a power to punishits members for contempts of the Assembly. It is submitted that this decision in De Lille iscorrect. The limits of the power created by s 57(1)(a) must be determined by a purposiveinterpretation of the section. This purpose is to facilitate the proper exercise of the functions

1 In Kilian v Gauteng Provincial Legislature 1999 (2) BCLR 225 (T) Van Dijkhorst J held that under the interimConstitution abstract review proceedings should be seen as part of the legislative process, and that subject toreasonable conditions imposed by the Speaker, the legal costs of minority parties in abstract review proceedingsought accordingly to be borne by the legislature. It is unlikely that this principle will be applicable to abstract reviewproceedings under FC s 80. In terms of FC s 80 abstract review takes place only after the legislative process hasbeen concluded. FC s 80 proceedings should therefore be seen as something outside the legislative process.Section 80 is a provision which confers on political parties with the requisite support a form of political standingto bring abstract challenges to Acts of Parliament upon their enactment. Parties which exercise this politicalstanding should not be entitled to do so at the expense of the legislature. (See also s 80(4), which contemplates theaward of costs orders against applicants for abstract review.)

2 It is not clear that this power would entitle the Assembly or the NCOP to refuse permission for their proceedingsto be broadcast on television. Compare New Brunswick Broadcasting Co v Nova Scotia 100 DLR (4th) 212 (SC),[1993] 1 SCR 319.

3 Sections 59(2) and 72(2).4 Section 8(1). See below, § 3.3(i)(iv).5 1998 (3) SA 430 (C), 1998 (7) BCLR 929 (C) at paras 20--1.



which the Constitution intended the Assembly to perform. The latter are set out in s 42(3),which provides as follows:

‘The National Assembly is elected to represent the people and to ensure government by the peopleunder the Constitution. It does this by choosing the President, by providing a national forum forpublic consideration of issues, by passing legislation and by scrutinizing and overseeing executiveaction.’

28ATo the extent that s 57(1)(a) authorizes the Assembly to exercise a disciplinary power overits members or the public, it is only one necessary to facilitate the proper functioning of theAssembly.1 If, for example, a member disrupts the proceedings of the Assembly, s 57(1)(a)may well authorize the Assembly to protect itself against the disruption by having thatmember removed.2 It does not, however, authorize the Assembly to exercise a purely punitivepower over its members or the public, because such a power is not necessary to ensure theproper functioning of the Assembly.

REVISION SERVICE 3, 1998The House of Commons in England and legislative assemblies in many Commonwealthcountries have the power to control their internal procedures and the power to punish personsin contempt. However, as was pointed out in De Lille’s case,3 it does not follow that the latteris an incident of the former. The House of Commons’ punitive power over members incontempt was a specific product of English history. It had its origins in the conflicts betweenthe Houses of Parliament, the crown and the courts in the fifteenth, sixteenth and seventeenthcenturies and in the fact that the Commons historically claimed judicial authority as the HighCourt of Parliament.4 This punitive power was recognized as a judicial function linked to thespecific history of the House of Commons rather than a legislative function inherent in anyrepresentative law-making assembly.5 Because this punitive power was a peculiar productof English history and not a necessary incident of a parliamentary legislature, the House ofLords, in Kielley v Carson, refused to recognize a comparable punitive power over contemptsin colonial legislatures.6

Following Kielley it has been clear that a punitive power over contempts is not an incidentof the general power of a legislature to control its internal proceedings. Those Common-wealth legislatures which ultimately acquired a punitive power over contempts did so onlyon the basis of legislation which either conferred the power on them specifically, or whichvested them with all the powers and privileges exercised by the House of Commons.7 Itfollows that ss 57(1)(a) and 70(1)(a) do not, of themselves, confer on the Assembly and theNCOP a punitive power over contempts of Parliament.8

1 De Lille v Speaker of the National Asembly at para 27.2 The Constitution clearly contemplates that members of the public who disrupt the proceedings of Parliament

can be removed from the Assembly and the NCOP. See ss 59(1)(b)(ii) and 72(1)(b)(ii).3 At para 21.4 This history is discussed in New Brunswick Broadcasting Co v Nova Scotia 100 DLR (4th) 212 (SC) at 225--8,

[1993] 1 SCR 319 and in Erskine May Parliamentary Practice 21 ed (1989) at 69--70, 82, 103.5 See O Hood Phillips & P Jackson Constitutional and Administrative Law 7 ed (1987) at 244.6 Kielley v Carson 13 ER 225 at 234--5. See also New Brunswick Broadcasting Co v Nova Scotia 100 DLR (4th)

212 (SC) at 226--8, [1993] 1 SCR 319.7 In South Africa this legislation was the Powers and Privileges of Parliament Act 19 of 1911, which was replaced

by the Powers and Privileges of Parliament Act 91 of 1963.8 De Lille and another v Speaker of the National Assembly 1998 (3) SA 430 (C), 1998 (7) BCLR 929 (C) at para 27.

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(ii) Rules and orders of the National Assembly and the NCOP

28BThe Assembly1 and the NCOP2 both have the power to make rules and orders concerningtheir business. However, this power is constrained by the Constitution. First, it has to beexercised with due regard to representative and participatory democracy, accountability,transparency, and public involvement.3 Secondly, ss 57(2) and 70(2) prescribe certain contentwhich the rules and orders must include. The rules and orders of both the Assembly and theNCOP must provide for the establishment of committees4 and the participation of minorityparties in parliamentary proceedings in a manner consistent with democracy.5 The rules ofthe Assembly must recognize a role for the leader of the opposition6 and must ensure that allparties represented in the Assembly are given sufficient financial and administrative assist-ance to operate effectively in the Assembly.7 Finally, the rules and orders of the Assemblyand the NCOP, like all other law, are subject to the Bill of Rights.8

(iii) Parliamentary privilege

Section 58 of the Constitution provides that cabinet members and members of theNational Assembly have freedom of speech in the Assembly, subject to its rules and orders,and may not be held criminally or civilly liable for any statements that they make in theAssembly or anything arising out of such statements. Section 71 contains an equivalentprovision for the NCOP. In De Lille & another v Speaker of the National Assembly Hlophe Jheld that the freedom of speech conferred by s 58 was not subject to general limitation unders 36 of the Constitution, but could be limited only in terms of the rules and orders of theAssembly. De Lille was a member of the National Assembly who made a statement inthe Assembly suggesting that certain members of the African National Congress had beeninformers for the pre-1994 apartheid government. The African National Congress then usedits parliamentary majority to pass a resolution of the Assembly suspending de Lille as apunishment for her statement. The suspension imposed on de Lille was not authorized bythe rules of the Assembly. The resolution was accordingly held to be an unconstitutionalviolation of de Lille’s freedom of speech in the Assembly.9

This strict reading of s 58 is to be commended. Freedom of speech in Parliament isessential to the political process.10 The proper functioning of representative democracy

1 Section 57(1)(b). 2 Section 70(1)(b). 3 Sections 57(1)(b) and 70(1)(b). These provisions are reinforced by the requirements of openness imposed by

ss 59 and 71, which are discussed above, § 3.3(i)(i). 4 Sections 57(2)(a) and 70(2)(a). The different roles of committees in the Assembly and the NCOP are discussed

above, § 3.3(a) and (b)(ii). 5 Sections 57(2)(b) and 70(2)(c). In Ex parte Chairperson of the Constitutional Assembly: In re Certification of

the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at para 224the Constitutional Court emphasized that this requirement was capable of judicial enforcement.

6 Section 57(2)(d). 7 Section 57(2)(c). 8 Section 8(1). See below, § 3.3(i)(iv). 9 De Lille & another v Speaker of the National Assembly at para 35.10 For a general discussion of freedom and speech and the political process, see below, Marcus & Spitz

‘Expression’ §§ 20.2(d), 20.3 and 20.8(a) in particular.


3--28B [REVISION SERVICE 3, 1998]

depends on members of Parliament having the freedom to speak openly in Parliament. Anyissue which is placed beyond the protection of freedom of speech in Parliament is an issuewhich cannot be addressed by the political process. Moreover, if members of Parliament donot know what they can or cannot say in Parliament without exposing themselves to liability,they will tend towards self-censorship. This will obviously be to the detriment of theproceedings and debates in Parliament. In order to avoid these consequences, exceptions tofreedom of speech in Parliament must be confined to a minimum and must be clearly defined.Sections 58(1)(a) and 71(1)(a) of the Constitution address these concerns by requiring allsuch limitations to be codified by the Assembly and the NCOP in rules which themselveshave to be made with due regard to representative and participatory democracy, account-ability and transparency.1 This, then, is the purpose that underlies ss 58(1)(a) and 71(1)(a),and the rigid enforcement of the requirements of s 58(1)(a) in De Lille & another v Speakerof the National Assembly was fully consistent with this purpose.28CIn terms of ss 58(2) and 71(2) of the Constitution, national legislation may prescribeadditional privileges and immunities of the Assembly, the NCOP, Cabinet members,members of the Assembly and delegates to the NCOP, beyond those provided by ss 58(1)and 71(1). The contemplated national legislation will be subject to the Constitution generally,and to the Bill of Rights in particular.2 In De Lille counsel for the Speaker argued that whileany law creating a privilege was subject to scrutiny in terms of the Bill of Rights, no exerciseof parliamentary privilege which purported to fall within the constitutionally valid scope ofthe law was subject to judicial review. The court rejected this untenable proposition.3 Boththe laws of parliamentary privilege and any individual exercise of parliamentary privilegeare subject to the Constitution.

In the De Lille case the court, and the parties, assumed that the Powers and Privileges ofParliament Act of 19634 could be treated as legislation contemplated by ss 58(1) and 71(1).5

That assumption was probably incorrect. The Powers and Privileges of Parliament Act in itsoriginal form conferred certain powers and privileges on the Parliament constituted underthe Republican Constitution of 1961,6 and the Houses and members of that Parliament.Following the enactment of the 1983 Constitution,7 the Powers and Privileges of ParliamentAct was amended8 so that the powers and privileges it conferred were transferred from thedefunct republican Parliament and its Houses and members, to the newly created tricameralParliament and its Houses and members.9 There have been no amendments of the Powers

1 See ss 57(1)(b) (Assembly) and 70(1)(b) (NCOP).2 De Lille & another v Speaker of the National Assembly 1998 (3) SA 430 (C), 1998 (7) BCLR 929 (C); Smith

v Mutasa & another NNO 1990 (3) SA 756 (ZS); Mutasa v Makombe NO 1998 (1) SA 397 (ZS), 1997 (6) BCLR841 (ZS). See further below, § 3.3(i)(iv).

3 De Lille & another v Speaker of the National Assembly at paras 20--5.4 Act 91 of 1963.5 See De Lille & another v Speaker of the National Assembly 1998 (3) SA 430 (C), 1998 (7) BCLR 929 (C) at para 26.6 Republic of South Africa Constitution, Act 32 of 1961.7 Republic of South Africa Constitution, Act 110 of 1983.8 By the Powers and Privileges of Parliament Amendment Act 95 of 1984.9 See, for example, the amendment of s 1 of the Powers and Privileges of Parliament Act to change the definitions

of ‘committee’, ‘Constitution’, ‘House’, ‘member’, ‘Parliament’, and ‘Speaker’ to conform with the structurescreated by the 1983 Constitution.

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[REVISION SERVICE 3, 1998] 3--28C

and Privileges of Parliament Act since the commencement of the interim Constitution. Theresult is that the Act prima facie continues to confer its powers and privileges on the tricamerallegislative organs of state, which no longer exist.28DCan it be inferred from the Constitution that powers and privileges which were conferredby the Act on a house of the tricameral Parliament1 are now to be vested in the NationalAssembly and the NCOP? It would seem not.2 There are no transitional provisions in theinterim and final Constitutions expressly transferring powers and privileges from the oldHouses of Parliament to the new Houses of Parliament.3 Any such powers and privilegesare an aspect of the legislative authority of the national government. Absent a transitionalprovision to the contrary, they accordingly vest in Parliament itself, rather than the individualHouses, because Parliament is the repository of the legislative authority of the nationalgovernment under the final Constitution.4 This analysis is consistent with Item 3(2)(a) ofSchedule 6 to the final Constitution,5 which provides that references in any pre-1994legislation to a House of Parliament must ordinarily be construed as a reference to Parliamentunder the final Constitution (rather than a reference to the Assembly or the NCOP). Hencepowers and privileges which vested in Houses of the tricameral Parliament are to be construedas vesting in Parliament itself, and not in the Assembly and the NCOP.

(iv) Constitutional supremacy and the powers and privileges of Parliament

In some other jurisdictions matters relating to the powers and privileges of Parliament aretreated as being beyond judicial scrutiny.6 Nevertheless, Hlophe J concluded in the De Lille

1 Section 1 of the Act defines ‘House’ to mean ‘a House of Parliament mentioned in section 37 of theConstitution’. ‘Constitution’ is defined by the Act to mean ‘the Republic of South Africa Constitution Act, 1983(Act 110 of 1983)’.

2 The analysis which follows is based on the analagous reasoning of Chaskalson P in Executive Council ofthe Western Cape Legislature & others v President of the RSA & others 1995 (4) SA 877 (CC), 1995 (12) BCLR1289 (CC) with respect to the transition of executive power on the commencement of the interim Constitution. Seeparas 69--74 of the judgment and paras 74(ii) and (iv) in particular.

3 Compare IC s 234(6) and FC Items 4(4) and 7(6) of Schedule 6, which expressly provided for the rules ofoutgoing Houses of Parliament to be construed as applying to the incoming Houses of Parliament.

4 FC s 43(a). See also IC s 37. FC s 44 provides that certain aspects of the legislative authority of Parliament areto be exercised by the Assembly and the NCOP, but powers and privileges of Parliament fall outside the scope ofthe section.

5 See also IC s 232(1)(b), which is in identical terms.6 As is to be expected, England presents an extreme example of judicial deference to Parliament in matters of its

powers and privileges. Once it is established that any claimed exercise of parliamentary privilege falls within arecognized field of privilege, the English courts will refrain from interfering with the exercise of privilege, even inclear cases of illegality, as is illustrated by the decision in Bradlaugh v Gosset (1884) 12 QB 271. Bradlaugh wasan elected member of Parliament. The House of Commons refused to allow him to take his oath of office becausehe was an atheist. On the grounds that he had not taken an oath of office, the Commons then prevented Bradlaughfrom taking his seat in Parliament and had him ejected from the House. Bradlaugh applied to court for relief toallow him to take up his seat. The court recognized that Parliament had acted illegally in ejecting Bradlaugh, butheld (at 286) that parliamentary privilege deprived it of any jurisdiction over the illegal acts of Parliament.

The Canadian courts also defer to the legislature on matters of privilege. In New Brunswick Broadcasting Co vNova Scotia 100 DLR (4th) 212 (SC), [1993] 1 SCR 319 a majority of the Supreme Court of Canada held thatexercises of parliamentary privilege by the provincial legislatures were not subject to review on Charter grounds.The Supreme Court reached this conclusion by finding that the powers and privileges of the legislatures formed

[continued on page 3--28E]


3--28D [REVISION SERVICE 3, 1998]

case that all powers and privileges of the South African Parliament and its Houses are subjectto judicial scrutiny for consistency with the Constitution.1 Once again, it is submitted thatthe De Lille decision was correct in this regard. The supremacy of the Constitution is one ofthe fundamental principles upon which the new South African legal order is based.2 Theunique process of constitutional certification ensured that the final Constitution could admitof no exceptions to the principle of constitutional supremacy.3 The Constitutional Court hasaccordingly confirmed that powers conferred by the Constitution must be exercised subjectto the Constitution and the Bill of Rights, irrespective of the scope of analogous powers inSouth African law prior to 1994.4 In particular, the mere fact that a matter relates tothe internal procedures of a House of Parliament does not prevent a court from exercising itsjurisdiction to ensure that there is compliance with the Constitution5 and the Bill of Rights.6

28EOf course, even if the Constitution requires judicial oversight of the powers and privilegesof Parliament, due deference to the constitutional role of Parliament will affect the way acourt approaches any Bill of Rights challenge to an exercise of the powers and privileges of

part of the Constitution of Canada and that the Charter did not constrain the exercise of constitutional powers. As ispointed out below, the latter principle is one which does not apply in South African constitutional law. See Ex parteChairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa,1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at paras 114--16. See also President of the RSA & anotherv Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at paras 10--13.

1 In this regard the De Lille judgment follows the decisions of the Zimbabwean Supreme Court in Smith vMutasa & another NNO 1990 (3) SA 756 (ZS) and Mutasa v Makombe NO 1998 (1) SA 397 (ZS), 1997 (6) BCLR841 (ZS).

2 One of the founding values identified in s 1(c) is ‘supremacy of the constitution and the rule of law’. Section 2provides that the ‘Constitution is the supreme law of the Republic’ and that ‘law or conduct inconsistent with it isinvalid’.

3 One of the principles with which the final Constitution had to comply was CP IV, which stated: ‘The Constitutionshall be the supreme law of the land. It shall be binding on all organs of state at all levels of government.’ In Ex parteChairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa,1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at para 45(a) the Constitutional Court identified ‘aconstitutional democracy based on the supremacy of the Constitution protected by an independent judiciary’ as thefirst fundamental premise of the new constitutional text. The court also refused to certify provisions of the new textwhich purported to place certain laws beyond the reach of constitutional supremacy (at paras 149--50).

4 See in particular the discussion of the presidential power to pardon and its antecedents in royal prerogativepowers in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of theRepublic of South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at paras 114--16. See alsoPresident of the RSA & another v Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at paras 10--13. The principlethat constitutional powers cannot be exercised inconsistently with the Bill of Rights is an important differencebetween South African and Canadian constitutional law and distinguishes De Lille from the decision of the CanadianSupreme Court in New Brunswick Broadcasting Co v Nova Scotia 100 DLR (4th) 212 (SC), [1993] 1 SCR 319.

5 This is clear from Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitutionof the Republic of South Africa, 1996 1996 (4) SA 744 (CC) at para 224. See also Federal Convention of Namibiav Speaker of the National Assembly of Namibia 1994 (1) SA 177 (NmHC) at 191J--192B.

6 Section 8(1) of the Constitution provides that the ‘Bill of Rights applies to all law, and binds the legislature, . . .and all organs of state.’ The Assembly is part of the national legislature. It is also an institution which exercisespowers and performs functions in terms of the Constitution and is accordingly an ‘organ of state’ within the meaningof FC s 239(b)(i). The Assembly is consequently subject to the constraints of the Bill of Rights. Cf President of theRSA & another v Hugo 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at paras 13 and 28.

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Parliament. Within the scope of the s 36 limitations enquiry a court can address many of thelegitimate concerns which underpin the argument that Parliament should not be subject tojudicial scrutiny of its powers and privileges.1 The powers and privileges of Parliament servethe purposes of protecting the dignity of Parliament and of facilitating the proper exercise ofthe functions which the Constitution intended Parliament and its Houses to perform. Theseare purposes of the utmost constitutional significance which will frequently justify limita-tions of fundamental rights where less important purposes would not. Furthermore, in itsassessment of the proportionality enquiry under s 36 a court will appreciate that Parliamentand its Houses will generally be better placed than the judiciary to determine what isnecessary to facilitate the performance of their constitutional functions. Hence a court willnot readily substitute its own assessment of the need for a particular exercise of a power orprivilege for that of Parliament or the relevant House. Nevertheless, in cases where the powersand privileges of Parliament are used for ulterior purposes, or are used to limit fundamentalrights in a manner wholly disproportionate to the purpose that they serve, the Constitutionobliges courts to intervene to protect the Bill of Rights.2

28F

1 See, for example, Mutasa v Makombe NO 1998 (1) SA 397 (ZS) at 405G--H, where the Supreme Court ofZimbabwe held that a parliamentary power to commit persons for contempt of Parliament was a justifiable limitationof the fundamental right to freedom of expression under the Zimbabwean Constitution.

2 It is submitted that De Lille was such a case. There the purported exercise of a privileged parliamentary powerwas used not for the purpose of protecting the dignity of Parliament or facilitating the functioning of the Assembly.Rather it was used for the purpose of punishing de Lille for the embarrassment she had caused to the majority partyin the Assembly. See De Lille & another v Speaker of the National Assembly 1998 (3) SA 430 (C), 1998 (7) BCLR929 (C) at paras 5--20.


3--28F [REVISION SERVICE 3, 1998]

3.4 THE NATIONAL EXECUTIVE UNDER THE FINAL CONSTITUTION

(a) The President

(i) Status, appointment and removal

28GThe President is head of state1 and the repository of the executive authority of the Republic.2

He is in both capacities bound by the Constitution, which he must uphold, defend andrespect.3 The final Constitution, reflecting the imperatives of the era of its adoption, alsoplaces him under a duty to promote the unity of the nation.4

The President is chosen by the National Assembly from among its members at the firstsitting after an election.5 If there are two or more nominations for President, the NationalAssembly holds a secret ballot to elect the President. A candidate requires a majority of thevotes to be elected. In cases where there are more than two nominations and no candidatereceives a majority, the candidate with the least votes is eliminated and a subsequent ballotis held. The process is then repeated until one candidate obtains a majority vote.6

The President may be removed from office by a resolution of the National Assemblyadopted with a supporting vote of two-thirds of its members. The only grounds for removalare a serious violation of law, serious misconduct, or inability to perform the functions ofoffice.7 Removal on either of the first two grounds deprives the President of all benefits of hisor her office and prevents him or her from holding any public office again.28H

1 Section 83(a).2 Section 85(1).3 Sections 2 and 83(b).4 Section 83(c).5 Section 86(1).6 Items 6 and 7 of Part A of Schedule 3, read with s 86(2).7 Section 89(1).

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[REVISION SERVICE 3, 1998] 3--28G

REVISION SERVICE 5, 1999Removal from office is to be distinguished from a vote of no confidence in the Presi-dent and the Cabinet. The former concerns misconduct or incapacity which renders the Presidentunfit for office. The latter may take place whenever the President has lost the political supportof the National Assembly. A simple majority of the members of the Assembly may pass avote of no confidence in the President and the Cabinet.1 Faced with such a vote of noconfidence, the President and the other members of the Cabinet must resign, but the Presidentis subject to none of the disabilities which follow removal from office.2

(ii) Powers and functions

29Section 84(2) vests in the President a range of specific functions which he performs as headof state. These powers bear a strong resemblance to prerogative powers. Under the interimConstitution the President could not draw on an uncodified set of prerogative powers.The Constitutional Court held in President of the Republic of South Africa v Hugo3 thats 82(1) exhaustively defined the prerogative powers of the President. It is possible, butunlikely, that the situation has changed under the final Constitution. Section 84(1) vests inthe President ‘the powers entrusted by the Constitution and legislation, including thosenecessary to perform the functions of Head of State and head of the national executive.’4 Theemphasized words are capable of accommodating certain prerogative powers which are notenumerated in s 84. However, in Hugo Goldstone J appeared to rule out such an interpretationby equating the approach followed in FC s 84 to that followed in IC s 82(1).5

In addition to his powers as head of state the President has a wide range of powers vestedin him as head of the national executive. These include the powers to implement nationallegislation, to develop national policy, and to co-ordinate the functions of state departments.6

(iii) The reviewability of acts of the President

In President of the Republic of South Africa v Hugo7 the Constitutional Court held that allpresidential actions were reviewable under the interim Constitution.8 The judgment in Hugo

1 The Assembly may pass a vote of no confidence directed at the Cabinet but not at the President (s 102(1)), butit cannot pass a vote of no confidence directed at the President only.

2 Section 102(2).3 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at para 8.4 Emphasis added.5 At para 7.6 See s 85.7 1997 (4) SA 1 (CC), 1997 (6) BCLR 708 (CC) at para 8.8 The judgment is discussed above, § 3.2(c).

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was based principally on provisions of the interim Constitution1 which have not changedmaterially in the final Constitution.2 It likely therefore, that all presidential actions remainreviewable under the final Constitution.3

(iv) Presidential consultation and the exercise of executive power

30The interim Constitution differentiated between powers of the President which were exer-cised alone, powers which were exercised in consultation with Deputy Presidents, and powerswhich were exercised in consultation with the Cabinet.4 The transitional provisions of thefinal Constitution carry over part of this distinction. Item 9(2) of Schedule 6 read with clause1 of Annexure B provides that until 30 April 1999 a range of powers which vest in thePresident as head of the national executive are to be exercised in consultation with the DeputyPresidents.5

This may not be the only respect in which the final Constitution requires consultation bythe President prior to the exercise of his or her powers. Section 85(2) states that the ‘Presidentexercises the executive authority, together with the other members of the Cabinet . . .’ Theemphasized words appear to be a ‘plain English’6 formulation for ‘in consultation with theother members of the Cabinet’. If this is the correct interpretation of s 85(2),7 the Presidentis obliged to consult the Cabinet in any exercise of his executive authority. This means thatprior to 30 April 1999 there are two separate consultation requirements with respect topresidential powers listed in clause 1 of Annexure B. The President must exercise thesepowers in consultation with the Deputy Presidents and with the Cabinet.

Any decision taken by the President which has legal consequences or which is authorizedby legislation must be in writing.8 Decisions which concern the functions of particularMinisters must be countersigned by those Ministers.9

1 Section 4, the supremacy clause (see para 10 of Hugo) and s 7(1), the application clause of the Bill of Rights(see para 13 of Hugo).

2 Compare FC s 2 to IC s 4 and FC s 8(1) to IC s 7(1).3 This appears to have been contemplated by the Constitutional Court in Ex parte Chairperson of the Constitu-

tional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC),1996 (10) BCLR 1253 (CC) at para 116, where it discussed the reviewability of the pardoning power under the finalConstitution. This discussion was quoted by Goldstone J at para 13 of Hugo. Note, however, that there is no directequivalent in the final Constitution to IC s 75, which provided expressly that the President was to ‘exercise andperform his or her powers and functions subject to and in accordance with this Constitution’.

4 See above, § 3.2(b)(i).5 These include: the development and execution of national government policies, powers relating to the

management of the Cabinet and the performance of Cabinet business, the making of appointments, the pardoningof offenders, and the appointment of commissions of inquiry.

6 See below, Kentridge & Spitz ‘Interpretation’ § 11.12(d).7 It is conceivable that the section may merely serve to emphasize that both the President and the other members

of the Cabinet exercise executive authority, but this is a less convincing interpretation.8 Section 101(1).9 Section 101(2).



(v) The constitutional veto

REVISION SERVICE 2, 1998Section 79 gives the President a suspensive veto over a Bill where he or she has reservationsas to its constitutionality. These reservations could relate to any constitutional issues. Theveto is not confined to cases where there are procedural objections relating to the Bill, as wasprobably the case in the interim Constitution.1

31 Where the President believes that a Bill passed by Parliament is unconstitutional he orshe can refuse to sign the Bill, but must then remit it to Parliament for reconsideration so thatthe constitutional shortcomings of the Bill can be addressed.2 If a revised Bill whichaccommodates the constitutional reservations of the President is passed by Parliament, thePresident is obliged to sign the Bill. If, after reconsideration, a Bill is passed which still doesnot accommodate the President’s reservations, the President must either refer the Bill to theConstitutional Court for a decision on its constitutionality or must sign the Bill into lawirrespective of his or her remaining doubts as to its constitutionality.3 If a Bill is referred tothe Constitutional Court and it declares that the Bill is constitutional, the President is obligedto sign the Bill into law.4

(b) The Cabinet

(i) Composition

Until 30 April 1999 the final Constitution provides for the continued existence of agovernment of national unity. In this period the Cabinet will consist of the President,Executive Deputy Presidents, a maximum of twenty-seven Ministers who are members ofthe National Assembly, and an optional additional Minister who is not a member of theNational Assembly.5 Any party with more than eighty seats in the National Assembly isentitled to designate an Executive Deputy President from its members of the Assembly, andany party with more than twenty seats in the National Assembly is entitled to ministerialrepresentation in proportion to its support in the Assembly. The President allocates portfoliosto parties represented in the government of national unity and appoints persons as Ministersafter consulting with the Executive Deputy Presidents and the leaders of the relevant parties.6

The allocation of deputy ministerial posts proceeds on similar lines.7

1 Section 64(1) of the interim Constitution appeared to confine the presidential veto to cases where he or shebelieved that the Bill had not been passed in accordance with the procedure of the Constitution.

2 Section 79(1). The joint rules of the National Assembly and the National Council of Provinces will provide aprocedure for the reconsideration of Bills in these circumstances (s 79(2)).

3 Section 79(4).4 Section 79(5).5 Section 91(1) as inserted by clause 4 of Annexure B to Schedule 6, read with item 9(2) of Schedule 6. Provision

for the optional additional Minister who is not a Member of Parliament is the legacy of the appointment of thebanker Chris Liebenberg as a non-partisan ‘expert’ Minister of Finance in 1994. The appointment of Liebenbergwas facilitated by s 2(a) of the Constitution of South Africa Fourth Amendment Act 14 of 1994, which amendeds 88(1)(b) of the interim Constitution.

6 Section 91(10) as inserted by clause 4 of Annexure B to Schedule 6, read with item 9(2) of Schedule 6.7 Section 93 as inserted by clause 5 of Annexure B to Schedule 6 read with item 9(2) of Schedule 6.

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The President has a general discretion1 to terminate specific ministerial appointments inthe interests of good government and must terminate the appointment of a Minister ifrequested to do so by the leader of the party of which that Minister is a member.2 An incidentof the power to terminate an appointment is the power to suspend a Minister from his or heroffice pending any decision on his or her dismissal.3

32 Following 30 April 1999 the government of national unity ceases to be a constitutionalrequirement. The Cabinet will then consist of a single Deputy President and an unspecifiednumber of Ministers. Any number of Ministers can be appointed from the members of theNational Assembly, but only two can be appointed from outside the Assembly. The Presidentmakes all appointments to the Cabinet. Parties have no claim to portfolios and party leadersneed not be consulted with regard to Cabinet appointments.4 The dismissal of CabinetMinisters is a discretionary power which vests in the President and is not subject to anyexpress limitations.5

(ii) Powers

As stated above,6 s 85(2) appears to oblige the President to consult the Cabinet in any exerciseof his executive authority. This is the principal constitutional source of Cabinet power.Ordinary legislation tends to confer powers on individual Ministers rather than on the Cabinetas a whole. Individual Ministers also have executive responsibilities assigned to them by thePresident. The President may, by proclamation, reallocate these responsibilities from oneMinister to another and may also provide that powers conferred by legislation on a particu-lar Minister will be transferred to another Minister.7

Section 99 allows a Minister to assign any power or function he or she performs, in termsof an Act of Parliament, to an MEC or to a Municipal Council. An assignment has the effectof transferring executive authority in respect of the power or function assigned from thenational government to the relevant provincial or local government.8 Assignments may notbe revoked by the Minister,9 but can be terminated by an Act of Parliament.10 The assignment

1 Section 91(10)(d)(ii) as inserted by clause 4 of Annexure B to Schedule 6 read with item 9(2) of Schedule 6prima facie obliges the President to terminate the appointment of a Minister where this is necessary for the purposesof the Constitution or where it is in the ‘interests of good government’. In practice the ‘interests of good government’requirement is unlikely to be objectively justiciable save in extreme cases. For good reasons, in the context ofministerial appointments, courts are likely to defer to the President’s decision as to where the interests of goodgovernment lie. See, for example, Mpehle v Government of the Republic of South Africa & another 1996 (7) BCLR921 (Ck).

2 Section 91(10)(d)(i) as inserted by clause 4 of Annexure B to Schedule 6 read with item 9(2) of Schedule 6. 3 Mpehle v Government of the Republic of South Africa & another 1996 (7) BCLR 921 (Ck) at 923E--930H. 4 Section 91. 5 Section 91(2). As was the case under the interim Constitution, an incident of this power would be the power

to suspend Ministers from their offices. 6 § 3.5(a)(iii). 7 Section 97. 8 See Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa &

others (supra) at para 173. 9 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others

(supra) at para 173.10 Parliament could revoke an assignment by repealing the provision creating the assigned power and enacting

a new statute conferring the same power on the Minister.



can take place only with the agreement of the relevant MEC or Municipal Council1 andmust be consistent with the Act of Parliament in terms of which the power or function isperformed. It is not clear how the latter requirement of consistency will be interpreted.Assignments may require express or tacit authorization in the relevant Act of Parliament. Onthe other hand, they may be competent whenever the relevant Act does not expressly or tacitlyprohibit them.33 Any function which, in terms of legislation, is to be performed by a member of the Cabinetmay be delegated to an MEC provided that the delegation is consistent with the legislationin terms of which the function is performed.2 Delegation differs from assignment in that itis revocable and that it does not deprive the delegator of the power to perform the relevantfunction during the period in which the delegation is in force.3 Executive power over adelegated function thus remains with the delegator.4

(iii) Collective responsibility

Section 92(2) of the final Constitution states:‘Members of the Cabinet are accountable collectively and individually to Parliament for the exerciseof their powers and the performance of their functions.’

Section 92(2) reflects the general principle of Cabinet government that the Cabinet takescollective responsibility for the activities of individual government departments and for theformulation of government policy which will be implemented through the individual CabinetMinisters and their departments.5

In systems of executive government based on collective Cabinet responsibility it isgenerally accepted that individual Cabinet members will refer to the Cabinet decisions whichthey must take but which have important implications for the government as a whole.6 Thusthe role of the Cabinet in Britain has been described as follows:

1 This requirement of agreement and the principles of co-operative government in Chapter 3 of the finalConstitution might found an argument that an assignment can be terminated by agreement between the Ministerand the relevant MEC or Municipal Council without prejudice to anything done in terms of the assignment duringthe period in which it was operative.

2 Section 238 read with the definition of ‘organ of state’ in s 239(1). As in the case of assignments, the scope ofthe ‘consistency’ requirement is not clear.

3 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others(supra) at para 173.

4 For this reason, delegated powers are not listed in s 125(2) as an element of provincial executive authority.5 While the government of national unity operates, this principle of collective responsibility is given greater

emphasis by subsecs (3)--(6) of s 96. These subsections fall away on 30 April 1999. See item 9(2) of Schedule 6,read with clause 6 of Annexure B to Schedule 6.

6 In addition to the authorities quoted below, see Jain Indian Constitutional Law 4 ed (1994) at 101:‘A Minister may himself dispose of routine matters without reference to the Cabinet, but in all matters of majorpolicy or of real political importance a Minister seeks guidance from the Cabinet. The Cabinet is the centraldirecting instrument of government in legislation as well as in administration. It coordinates administrative actionand sanctions legislative proposals.’See also Minister for Arts Heritage and Environment & others v Peko-Wallsend Ltd & others (1987) 75 ALR 218

at 225 for a discussion of these principles in the context of Australian constitutional law.

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‘The Cabinet is not an ‘‘executive’’ instrument in the sense that it possesses any legal powers; it isa policy-formulating body. When it has determined on a policy, the appropriate department carriesit out, either by administrative action within the law or by drafting a Bill to be submitted toParliament so as to change the law. The Cabinet is a general controlling body . . . It neither desires nor is able to deal with all thenumerous details of government. It expects a minister to take all decisions which are not of realpolitical importance. Every minister must therefore exercise his own discretion as to what mattersarising in his department ought to receive Cabinet sanction. The minister who refers too much isweak; he who refers too little is dangerous.’1

34 The supervisory and directory role of the Cabinet in Canada is set out by Hogg:‘The cabinet, which does meet regularly and frequently, is in most matters the supreme executiveauthority . . . The cabinet formulates and carries out all executive policies, and it is responsible forthe administration of all the departments of government . . . Where a statute requires that a decisionbe made by a particular minister, then the cabinet will make the decision, and the relevant ministerwill formally authenticate the decision. Of course a cabinet will be content to delegate many mattersto individual ministers, but each minister recognizes the supreme authority of the cabinet shouldthe cabinet seek to exercise it.’2

It is a cornerstone of collective responsibility that an individual Minister is bound byCabinet decisions and may not publicly dissociate him or herself from a decision takenby the Cabinet as a whole.3 Any Minister who dissents from a Cabinet decision in publicmust resign, or face dismissal.

(c) National executive intervention

The national government oversees the provinces’ exercise of executive powers. If a provincefails to fulfil any of its executive obligations, the national government may intervene in termsof s 100(1) to ensure that the obligation is fulfilled. Steps which may be taken include4

the issuing of directives to the provincial government5 or, in certain circumstances, thedirect assumption by the national government of responsibility for the neglected executiveobligation.6 Any decision to assume responsibility for a provincial executive obligationlapses unless it is ratified by the National Council of Provinces within thirty days of its firstsitting following the intervention of the national government.7

1 Jennings Cabinet Government (1937) at 178.2 Hogg Constitutional Law of Canada 3 ed (1992) at 9-8--9-9.3 See, for example, Jennings op cit at 217--18, Hogg op cit at 9-11--9-12, Jain op cit at 102--3, Mackintosh The

British Cabinet (1962) at 445--6.4 Section 100(1) is drafted so that the list of powers authorized by paras (a) and (b) appears to be open-ended.

However, the limitations placed by para (b) on the power of national government to assume direct responsibilityfor a provincial executive obligation suggest that the Constitution itself does not authorize such intervention incircumstances other than those contemplated by subparas (i)--(iv) of s 100(1)(b).

5 Section 100(1)(a).6 Section 100(1)(b). The section authorizes this extreme form of intervention only where it is necessary to meet

minimum standards for the rendering of services, to maintain essential national standards, economic unity ornational security, or to prevent the province from acting to the prejudice of other provinces or the country as a whole.

7 Section 100(2)(b).



35 At the certification debate various parties criticized s 100(1) as a violation of legitimateprovincial autonomy. However, these criticisms were misplaced. As the ConstitutionalCourt pointed out, s 100(1) gives no power to the national government where a provinceproperly carries out its executive obligations1 and, given the historical context in which theConstitution was adopted, there can be little objection to a provision which allows nationalgovernment to intervene where newly created and inexperienced provincial governments failto perform their constitutional responsibilities.

3.5 THE LEGALITY PRINCIPLE

REVISION SERVICE 5, 1999The rule of law is one of the founding values of the final Constitution.2 The legality principlewhich flows from the rule of law is binding on all legislative and executive organs of statein all spheres of government.3 The legality principle was first considered by the Constitu-tional Court in Fedsure v Greater Johannesburg Metropolitan Council. There the court heldthat the legality principle provided that legislative and executive organs of state ‘may exerciseno power and perform no function beyond that conferred upon them by law’. Thus stated,the legality principle was hardly controversial. Indeed, its only relevance to the Fedsure caseconcerned questions of jurisdiction, rather than questions of substantive law.4 However, thefar-reaching significance of the legality principle soon became clear. In New National Partyof SA v Government of the RSA & others5 Yacoob J stated that laws and acts which are notrationally related to a legitimate government purpose are unconstitutional and invalid becausearbitrariness is inconsistent with the legality principle. Following New National Party of SAit is therefore clear that the legality principle provides a basis for subjecting legislative andexecutive organs of state to rationality review even where fundamental rights are notinfringed.

Although the issue has not yet been considered by a court, it is submitted that vaguelegislation violates the legality principle. The rule of law is usually understood to require aminimum degree of certainty in laws.6 The rule of law objections to vague laws are two-fold.Vague laws deny persons the opportunity of establishing what conduct is permitted and whatis not so that they might regulate their affairs. They also delegate an impermissibly broad

1 Certification of the Constitution, 1996 (supra) at paras 263--6. Any attempt by the national government toexercise powers under s 100(1) where a province was properly complying with its executive obligations would beunconstitutional and invalid.

2 Section 1(c).3 Fedsure v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC), 1998 (12) BCLR 1458 (CC) at

para 58.4 Fedsure v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC), 1998 (12) BCLR 1458 (CC)

at para 58. See also President of the RSA v SARFU & others 1999 (2) SA 14 (CC), 1999 (2) BCLR 175 (CC) atpara 28.

5 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) at para 24.6 See, for example, Raz ‘The Rule of Law and its Virtue’ (1977) 93 LQR 195 and Matthews ‘The Rule of Law

---- A Reassessment’ in Kahn (ed) Fiat Justitia: Essays in Memory of Oliver Deneys Schreiner (1983) 294.

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discretion to the administrators who must enforce them.1 In the United States and Canadaobjections to vague laws are expressed through the constitutional-law concepts of dueprocess of law and fundamental justice respectively.2 In South African constitutional lawthe legality principle is likely to serve this purpose.

36

1 These concerns are expressed in the South African law relating to the impermissibility of vagueness in delegatedlegislation. R v Shapiro 1935 NPD 155; R v Jopp & another 1949 (4) SA 11 (N) at 13--14; Arnold v RaceClassification Appeal Board 1967 (2) SA 267 (C) at 274; Metal and Allied Workers Union v State President 1986(4) SA 358 (N) at 366; Tsenoli v State President 1992 (3) SA 37 (N) at 46. See also Baxter Administrative Law at529--33.

2 Grayned v City of Rockford 408 US 104 (1972); Hoffman Estates v Flipside, Hoffman Estates Inc 455 US 489(1982); Reference re Criminal Code 48 CRR 1 (1990); R v Nova Scotia Pharmaceutical Society 10 CRR (2d) 34.In the latter case the Supreme Court of Canada stated the following at 47:

‘Vagueness can be raised under section 7 of the Charter, since it is a principle of fundamental justice that lawsmay not be too vague . . . The ‘‘doctrine of vagueness’’ is founded on the rule of law, particularly on the principles of fair notice to citizensand limitation of enforcement discretion.’



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