CSL2601/201/2/2015

Tutorial Letter 201/2/2015

Constitutional Law

CSL2601

2015

Department of Public, Constitutional and International Law

IMPORTANT INFORMATION

This tutorial letter contains important information about your module.

CONTENTS

1 Feedback on Assignment 012 Feedback on Assignment 023 Format of the examination paper4 Concluding remarks

Dear Student

Read this tutorial letter carefully, as it contains feedback on both Assignment 01 and Assignment 02, as well as feedback on the self-assessment assignment for the first semester of 2015. It also contains information on this semester’s examination paper format.

We trust that you have found the assignments challenging and hope that the feedback will enhance your knowledge and understanding of this module.

1 Feedback on Assignment 01

SEMESTER 02ASSIGNMENT 01UNIQUE NO: 582723CLOSING DATE: 11 SEPTEMBER 2015

Please note: This assignment must be answered on a mark-reading sheet.

Indicate whether the following statements are TRUE or FALSE by indicating 1 for “true” and 2 for “false”:1. According to the 1996 Constitution of South Africa, the President can only refer a billbill

back to the National Assembly for reconsideration if he or she has reservations about its

constitutionality.

False; in terms of section 79 of the Constitution, if the President has reservations about the

constitutionality of the bill, the President may refer it back to the National Assembly for

reconsideration. However, this is not the only method of ensuring the constitutionality of a

bill, because if the bill, after reconsideration by the National Assembly, bill still does not

accommodate the President’s reservations, the President can refer it to the Constitutional

Court for a decision on its constitutionality. (1)2

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2. An amendment to section 9 of the Constitution of South Africa requires a supporting vote of

at least 75% of the members of the National Assembly and a supporting vote of at least six

provinces in the National Council of Provinces.

False; section 74 of the Constitution governs bills amending the Constitution and stipulates

that a bill passed by at least 75% of the members of the National Assembly and six

provinces from the National Council of Provinces is required only when amending section 1

and section 74(1) of the Constitution. In the specific case of section 9, therefore, section

74(2) is applicable as it provides that any other provision of the Constitution may be

amended by a bill passed with a two-thirds (66,6%) majority by the National Assembly and

at least six provinces in the National Council of Provinces. (1)

3. In terms of the Electoral Amendment Act, 18 of 2013, South Africans living abroad are

entitled to vote only if they are registered as voters.

True; in Richter, the applicant, a South African citizen working in the United Kingdom as a

teacher, was a registered voter. Although Mr Richter wished to vote in the 2009 general

elections, he was unable to do so because in terms of section 33(1)(e) of the Electoral Act,

73 of 1998, only South Africans who were temporarily absent from the Republic for

business, holiday, educational and sporting purposes could cast special votes. This Act

made absolutely no provisions for South Africans who were absent for employment or other

purposes to cast special votes. In deciding this contentious matter, the Constitutional Court

affirmed that the right to vote also imposes burdens on citizens. First, they have to register in good time among other requirements.

At the same time that Richter was heard, the court decided in A Party and Another v

Minister of Home Affairs and Others. In this case, the applicants went further than seeking a

declaration that section 33 of the Electoral Laws Act was unconstitutional; they also sought

an order that sections 7, 8, 9 and 60 were unconstitutional because they violated the right to

vote and the right to equal treatment of South African citizens living abroad.

In handing down unanimous judgments in both of the above-mentioned cases, the court

decided that South Africans living abroad had the right to vote if they were registered. (1)

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4. When the Marikana Commission of Inquiry, appointed by the President in terms of section

84(2)(f) of the 1996 Constitution of South Africa, releases its final report, the President is

bound to follow the recommendations made by this commission in this report.

False; the President is not bound to follow the recommendations provided by the

commissions of inquiry established by him or her in terms of section 84(2) of the

Constitution. For instance, former President, Mr Thabo Mbeki, established a commission of

inquiry in terms of section 84(2)(f), led by Judge Sisi Khampepe, on 1 April 2005. The

purpose of the Commission was to investigate and review the mandate of the Directorate of

Special Operations (known as ‘‘the Scorpions’’) as an investigative arm in the fight against

special crimes. After the Commission had fulfilled its duty and submitted its report to the

President recommending that the Scorpions should remain within the National Prosecuting

Authority, but with reporting pligs to the Minister of Safety and Security, President Mbeki,

instead of taking into account the recommendations made by the Commission, decided to

disband the crime fighting unit. A successful formal challenge against the disbanding of the

Scorpions was brought by High Glenister in the case of Glenister v President of the Republic

of South Africa and Others (Glenister II) 2011 (3) SA 347 (CC). (1)

5. Professor Pierre de Vos, a constitutional law expert, has written good academic articles and

papers on constitutional law which have been quoted by South African courts in several

constitutional law cases. This indicates that academic writings constitute primary sources of

constitutional law.

False; academic writings are not a primary source of South African law, but are secondary

sources with persuasive value, which means that anyone or courts referring to them is not

necessarily obliged to follow their interpretation. However, they often influence legislative

and judicial decision-making and are, therefore, important. (1)

6. In terms of section 42 of the 1996 Constitution, the National Assembly should participate in

the legislative process of the country only in the national sphere of government.

False; in terms of section 42 of the Constitution, the National Assembly and the National

Council of Provinces should participate in the legislative process of the country in the

national sphere of government. (1)

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7. The Constitutional Court of South Africa is the court of final instance in relation to

constitutional matters only.

False; the Constitution Seventeenth Amendment Act, section 167(3), provides that the

Constitutional Court may decide on constitutional matters and any other matter, if the

Constitutional Court grants leave to appeal on the grounds that the matter raises an

arguable point of law of general public importance (1)

8. Under the current constitutional dispensation in South Africa, local government is a public

body exercising powers delegated by the national and provincial spheres of government.

False; the local sphere of government derives its power from the Constitution. Prior to 1994,

municipalities derived their existence and their powers from provincial ordinances which, in

turn, derived their existence and powers from Acts of Parliament. However, post 1994 the

sphere of local government have original constitutional powers and are interdependent and

the national and/or provincial government may not compromise or impede a municipality’s

ability or right to exercise its powers as per section 151(4) and 156(5) of the Constitution. (1)

9. The Constitution is an Act of Parliament and this is evident from the fact that it is referred to

as Act 108 of 1996.

False; section 2 of the Constitution provides that the Constitution is the supreme law of the

Republic of South Africa and, unlike other Acts of the country, the Constitution was not

passed by Parliament, but was adopted by the Constitutional Assembly. Refer to the

Citation of Constitutional Laws Act 5 of 2005. (1)

10. Although the principle of separation of powers is not mentioned expressly in the

Constitution, it is implicit in the Constitution and has the same force as any expressed

constitutional provision.

True; Constitutional Principle VI, to which the Constitution had to conform, reads as follows:

“There shall be a separation of powers between the legislature, the executive and judiciary”.

In the case of Ex parte: Chairperson of the Constitutional Assembly: In re: Certification of

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the Constitution of the Republic of South Africa, 1996, the Constitutional Court held that it

was satisfied that the Constitutional Assembly had complied with this principle. (1) TOTAL [10]

SEMESTER 02ASSIGNMENT 02UNIQUE NO.: 582771CLOSING DATE: 16 OCTOBER 2015

Question 1Your Vote Counts Republic is a heterogeneous society which has been divided racially for a

number of years. It is about to hold its very first democratic elections in 2015. However, the

Independent Electoral Commission is confused as to which electoral system to use in the forth-

coming elections. The Commissioners of the IEC approach you, a constitutional law expert, for

advice as to which system would be best suited to a heterogeneous society. In your answer,

discuss the different types of electoral systems at their disposal and give reasons why they

should choose whichever system you think is best for their country. (10)

[NB: WE RECOGNISE THAT A LOT OF THIS INFORMATION IS NOT CONTAINED IN THE TEXTBOOK, SO MARKS ARE AWARDED FOR INDEPENDENT RESEARCH AND THE ABILITY TO REACH A LEGALLY-SOUND, PLAUSIBLE AND DEFENSIBLE CONCLUSION]

While there are numerous electoral systems in existence, the two most common forms are the

territorial/regional and the proportional representation systems.

Territorial/regional representation is a characteristic of the Westminster electoral system,

whereby the national territory is divided into a number of geographical units called

“constituencies” and a single member is elected to represent each constituency in Parliament

(even if the constituency has more than one candidate, only one of them may represent that

particular geographical area). The election takes place by way of a relative majority, which

means that a candidate with one more vote than any of the other candidates is elected (also

described as “first past the post” – i.e. the one who balloted more votes than the next best

candidate, but not necessarily more than all his or her opponents put together).

A criticism against this system is that it may incorrectly reflect the relative strengths of the

political parties by favouring stronger parties and tending to eliminate weaker ones. The

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demarcation of constituencies exacerbates this imbalance, because a government may have a

substantial majority in Parliament, but, in terms of votes cast, may well not have nearly as much

support among the people themselves.

Distinct advantages of this system are that it is a simple system that is conducive to a strong

and stable government and results in a closer bond between the representative and the voter,

since the representative represents a particular geographic constituency. Voters in that area

can complain to their representative in Parliament if they are not satisfied with the government’s

performance.

However, this system has the disadvantage that it incorrectly reflects strengths of the parties

and tends to favour stronger parties, to the detriment of weaker ones. Moreover, the artificial

delineation of constituencies can give rise to an imbalance between constituencies and

allegedly leads to gerrymandering (the drawing of constituency lines in a manner that dilutes

support for certain political parties or for certain cultural or racial groups).

Proportional representation means that all parties participating in an election obtain

representation in Parliament directly reflecting the votes cast for these parties in such election

(according to a list system). Accordingly, the strength of representation of a party in Parliament

is directly proportional to its support among the electorate. It is therefore the most inclusive

system of representation, because both majority parties and minority parties are given the right

to represent their constituencies in the legislative authority.

Advantages of this system are that it provides a fair reflection of the voters’ opinion and

eliminates the problem of delimitating electoral districts. In addition, all votes carry the same

weight, owing to the absence of artificially delimited constituencies. This system also

accommodates a wider representation of parties, and minorities are able to form coalitions

against a majority party to prevent dominance by a major party.

Disadvantages of proportional representation are that it may lead to a weak, unstable

government because it may make it impossible for any one party to obtain an absolute majority

(however, this is the case only where there are no major parties, but only a number of small

parties). It also is impersonal because there is no contact between the voter and the

representative as voters vote for a party, not for an individual. Proportional representation is

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often complicated and difficult to understand, and often fails to produce a clear and workable

majority.

Given that proportional representation is an inclusive system, it is most suitable for our Your

Vote Counts Republic, because of the heterogeneous nature of the Republic’s society. This

electoral system is most appropriate because it accurately reflects the electorate’s wishes in

respect of the number of seats allocated to each party since it is specifically designed to deal

with the reality of the existence of political parties. Its major strength is that the electorate’s

wishes are accurately reflected in the number of seats allocated to each party in Parliament.

It also allows for the presence of small parties in Parliament that can garner enough support

nationally for a few seats, but whose support is too thinly spread for them to win any

constituency-based seats. Quite often, in plurality systems, even large parties will not bother to

put up a candidate in a constituency where they are unlikely to win, which means that

supporters of that party within these constituencies are unable to vote for a candidate who

stands for the party of their choice. With the party list system, however, no votes are ever

wasted, and voters can feel free to vote for whichever party they wish, no matter where they

reside.

Unfortunately, though, in proportional representative systems, the MPs become subservient to

the wishes of the party elite, because the MPs are completely dependent on their parties for

their seats (since parties have immense power to determine which candidates get elected) and

this means there is little independence of thought. Candidates and current MPs are both

constrained to conform to every aspect of the party policy and the wishes of the leaders in the

party hierarchy in order to secure a place on the party list.

A further problem is that voters have no contact or influence with their representatives.

Moreover, voters have no direct influence over who the candidates are and unpopular

candidates, who nonetheless enjoy support with the party hierarchy, can be elected. As such,

there is no opportunity for individual MPs to promote personal issues and no regard need be

taken of issues that are important to communities at a constituency level. This weakness is

exacerbated by the growing strength of the executive in government internationally, irrespective

of electoral system, given that the executive is usually comprised of the party elite. In addition,

because it allows a large number of parties to have seats in Parliament, there is the potential that 8

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no single party will have enough strength to form a government and coalitions will have to be

formed.

Question 2

In Matatiele Municipality and Others v President of the Republic of South Africa and Others (No

2) 2007 (1) BCLR 47 (CC), the court held as follows at paragraph 40:

Our Constitution contemplates a democracy that is representative, and that also contains elements of

participatory democracy. As the Preamble openly declares, what is contemplated is ‘‘a democratic and open

society in which government is based on the will of the people’’. Consistent with constitutional order, section

118(1)(a) calls upon the provincial legislatures to facilitate involvement in [their] legislative and other

processes, including those of their committees. As was held in Doctors for Life International v Speaker of the

National Assembly and Others (CCT 12/05), our Constitution calls for open and transparent government and

requires legislative organs to facilitate public participation in the making of laws by all legislative organs of

the State.

In the light of the above, study section 59(1)(a) and 72(1)(a) of the Constitution, as well as

Doctors for Life International v Speaker of the National Assembly and Others 2006 (12) BCLR

1399 (CC) (paras 115, 118-129 and 204) and Merafong Demarcation Forum and Others v

President of the Republic of South Africa and Others 2008 (5) SA 171 (paras 26-27, 44-46, 50-

61, and 116) concerning access to, and public involvement in both the National Assembly and

the National Council of Provinces. Thereafter answer the following questions:

2.1 What do you understand by participatory democracy? (5)

Participatory democracy is an indispensable feature of our system of governance as it is

primarily concerned with ensuring that citizens are afforded an opportunity to participate or

otherwise be involved in decision-making on matters that affects their lives. Representative

democracy is achieved through the electoral process, because at each election, the citizens

confer a mandate onto the representatives that they have elected into power. Despite this, it

does not mean that citizens are totally excluded from decision-making. Thus, participatory

democracy seeks to ensure that citizens are afforded real opportunities to participate

meaningfully in decisions that affect them. In this regard, the elected legislative bodies are

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constitutionally mandated to facilitate public involvement in the legislative and other processes

of their respective committees (see sections 59(1)(a), 72(1)(a), and 118(1)(a) of the

Constitution). This is referred to as "participatory democracy" and simply means that individuals

or institutions must be given an opportunity to participate in the making of decisions that affect

them.

As Ncgobo J held in Matatiele Municipality and Others v President of the Republic of South

Africa and Others (No 2) 2007 (1) BCLR 47 (CC), at para 68:

The nature and degree of public participation that is reasonable in a given case depends on a number of

factors. These include the nature and the importance of the legislation and the intensity of its impact on the

public. The more discrete and identifiable the potentially affected section of the population, and the more

intense the possible effect on their interests, the more reasonable it would be to expect the legislature to

ensure that the potentially affected section of the population is given a reasonable opportunity to have a say.

In Doctors for Life International v Speaker of the National Assembly and Others 2006 (12)

BCLR 1399 (CC), one of the issues the court had to consider was the nature and scope of the

duty to facilitate public involvement contemplated in sections 72(1)(a) and 118(1)(a) of the

Constitution. The court made an order declaring that Parliament had failed to comply with its

constitutional plig to facilitate public involvement before passing the Choice on Termination of

Pregnancy Amendment Act, 38 of 2004, and the Traditional Health Practitioners Act, 35 of 2004,

as required by section 72(1)(a) of the Constitution. It was held that as a consequence, these Acts

had been adopted in a manner that was inconsistent with the Constitution and were thus invalid.

In this case, the court developed a reasonableness standard in determining whether a

legislative body has complied with its constitutional duty to facilitate public involvement in its

legislative processes. The court indicated that -

…the duty to facilitate public involvement must be construed in the context of our constitutional democracy,

which embraces the principle of participation and consultation. Parliament and the provincial legislatures

have broad discretion to determine how best to fulfil their constitutional plig to facilitate involvement in a

given case, so long as they act reasonably...

In determining whether Parliament has complied with its duty to facilitate public participation in

any particular case, the court will consider what Parliament has done. The question will be

whether what Parliament has done is reasonable in all the circumstances. Factors relevant to

determining reasonableness would include rules, if any, adopted by Parliament to facilitate

public participation, the nature of the legislation under consideration, and whether the legislation

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needed to be enacted urgently. Ultimately, what Parliament must determine in each case is

what methods of facilitating public participation would be appropriate. In determining whether

what Parliament has done is reasonable, this court will pay particular respect to what Parliament

regards as being the appropriate method. In determining the appropriate level of scrutiny of

Parliament’s duty to facilitate public involvement, the court must balance the need to respect

parliamentary institutional autonomy and the right of the public to participate in public affairs.

In Merafong Demarcation Forum and Others v President of the Republic South Africa and

Others 2008 (5) SA 171, the reasonableness standard was developed further. Echoing Doctors

for Life International, the court held at para 27 that -

… [i]n determining whether the legislature acted reasonably, this Court will pay respect to what the

legislature assessed as being the appropriate method. The method and degree of public participation that is

reasonable in a given case depends on a number of factors, including the nature and importance of the

legislation and the intensity of its impact on the public. In the process of considering and approving a

proposed constitutional amendment regarding the alteration of provincial boundaries, a provincial legislature

must at least provide the people who might be affected a reasonable opportunity to submit oral and written

comments and representations (see also paras 56-57 and 116).

Applying this test, the court decided, at para 56, that failure by the Gauteng Provincial

Legislature to report back to the Merafong community, after changing the position taken by the

Portfolio Committee in its negotiating mandate, does not rise to the level of unreasonableness,

which would result in the invalidity of the Twelfth Amendment, which was otherwise properly

passed by Parliament. It cannot result in a finding that Gauteng failed to take reasonable

measures to facilitate public involvement, as required by sections 72(1)(a) and 118(1)(a) of the

Constitution. Page 94 of the textbook captures the idea of participatory democracy as follows:

…The participation by the public on a continuous basis provides vitality to the functioning of representative

democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves

with the institutions of government and become familiar with the laws as they are made … it enables their

voices to be heard and taken account of. … It strengthens the legitimacy of legislation in the eyes of the

people. … Participatory democracy is of special importance to those who are relatively disempowered in a

country like ours where great disparities of wealth and influence exist.

2.2 What is the relationship between representative and participatory democracy? (5)

Elections take place periodically – usually every five (5) years. At each election, citizens vote for

the political parties that they believe will give effect to their needs and wishes. Citizens thus

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confer their mandate on a political party to represent their interests over a period of time.

Because the political party is representing the citizens, it can take decisions of national concern

without seeking the citizens’ views on those particular aspects. This can have the consequence

of being both dangerous and disempowering because it gives the political parties immense

powers and there is the very real risk that certain needs and interests of the citizens may be

overlooked, which may cause discontent among the citizenry because they will feel that their

opinions do not count. Therefore, in order to ensure that the citizens still play a meaningful role in

decision-making that affects them, they are entitled to participate when decisions are being made.

This illustrates that there is a close relationship between representative and participatory

democracy.

Once representative democracy is in place, it is imperative that participatory democracy is also

given effect through citizens being invited to be involved in decision-making, which

consequently enhances and augments representative democracy because the representatives

are placed in a position to make better decisions precisely because the citizens whom they

represent are given an opportunity to put their views across. As De Vos and Freedman put it,

participatory democracy is thus a “derivative of representative democracy as it seeks to ensure

that, while citizens confer a mandate on elected representatives, they are not totally excluded

from the decision-making process in matters that concern them”.

2.3 What steps should the NCOP take to fulfil its duty to facilitate public involvement in its processes? (5)

The NCOP is obliged to call for written submissions and hold public hearings in order that

members of the public may directly/indirectly engage with members of the legislature by providing

input to the legislature during the law-making process. In respect of the written submissions,

civil society is entitled to present detailed written representation outlining the group’s views on a

particular issue. As it concerns public hearings, these are usually convened by standing

committees and they afford the public the opportunity to make a written or verbal submission on

any matter for which a public hearing has been convened.

With reference to the case of Merafong Demarcation Forum and Others v President of the

Republic of South Africa and Others (page 88 of the textbook), the Constitution emphasizes that

accountability, transparency and democracy are central to the governance of South Africa. At

least, therefore, we can expect that public participation should be ensured when decisions are

being made that affect some or even all of us. Public participation also gives credibility to

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decisions because they stem from a legitimate source (the people) and have the buy-in of the

people. However, what the Merafong case has revealed is that genuine public participation

should occur. In other words, mere lip-service should not be paid to important decisions which

impact on how we will be governed. Substantive principles of public governance cannot be

developed if the public participation is a mere sham or a façade. Even though a “consultative

process” was followed in Merafong where the community were allowed to air their views, the

opinions of the community were blatantly disregarded. The majority opposed the Constitutional

Amendment to relocate the Merafong municipality to the North West province from Gauteng, yet

the legislature brought the law into force regardless of the dissatisfaction. As a direct result of

the failure to give meaningful effect to public participation, the Khutsong township of Merafong

“became ‘ungovernable’ and resembled a war zone as residents refused to accept the decision

to relocate the municipality”. Therefore, the conclusion is that public participation is essential,

but it must be real public participation and not merely formalistic thus giving the impression that

it is taking place whereas it is not in reality.

2.4 What do you understand by the standard of reasonableness in determining whether the NCOP carried out its duty to facilitate public involvement in its legislative and other processes? (7)

Reasonableness is an objective standard which is sensitive to the facts and circumstances of a

particular case. It means that Parliament has a duty, first, “to provide meaningful opportunities

for public participation in the law-making process” and, second, “to take measures to ensure

that people have the ability to take advantage of the opportunities provided”. Parliament has a

positive duty to take practical steps to facilitate public involvement for everyone from all spheres

of life regardless of their socio-economic circumstances. ‘They must provide notice of and

information about the legislation under consideration and the opportunities for participation that

are available’ to ensure that citizens have an opportunity for effective participation in the

process. The factors that will be used to determine reasonableness are as follows:

1) ‘The nature and importance of the legislation and the intensity of its impact on the public”.

2) What is practically possible, with reference to time and expense, which relates to the

efficiency of the law-making process. The Court noted, however, that “the saving of money

and time in itself does not justify inadequate opportunities for public involvement”.

3) What Parliament itself considered “to be appropriate public involvement in the light of the

legislation’s content, importance and urgency.”

Question 313

Read the scenario below and thereafter answer the questions in relation thereto:

The Transport Laws and Related Matters Amendment bill (the e-tolling bill) was tagged or

classified as a section 75 bill, rather than a section 76 bill .The Democratic Alliance has

challenged the constitutionality of this bill on the basis that it was incorrectly tagged as a section

75 bill while it is in actual fact a section 76 bill. In this context, discuss the following issues:

1. The distinction between a section 75 and a section 76 bill (2)

Section 75 regulates the procedure for the adoption of ordinary bills which do not affect the

provinces. On the other hand, section 76 regulates the procedure for the adoption of ordinary

bills which affect the provinces. However, both of them deal with the adoption of ordinary bills

and not amending the Constitution.

2. The importance of tagging bills correctly (2)

It is important to tag bills correctly because failure to do so may result in the bill in question not

becoming law. For instance, if a bill affecting Provinces is improperly tagged as one not

affecting provinces, such a bill will not have been properly enacted and resultantly not become law.

3. The decision of the Constitutional Court on the tagging of bills (8)

The Constitutional Court dealt with the issue of tagging of bills in Ex Parte The President of the

Republic of South Africa: In re Constitutionality of the Liquor bill 2001(1) BCLR 1(CC). In the

Liquor bill case, the Constitutional Court laid out the “Substantial Measure” test to be used when

tagging bills. At paragraph 27 the court said that, “… any bill whose (sic) provisions in

substantial measure fall within a functional area listed in Schedule 4 ‘must’ be dealt with under

section 76.” One therefore has to take a closer look at the bill and see whether by substantial

measure the provisions of the bill fall within the functional area listed in Schedule 4 or 5.

It does, however, not follow that if the provisions of the Bill fall within a functional area listed in

Schedule 4 or 5 it will be dealt with according to section 76. From the Liquor bill case, a bill

whose provisions ‘in substantial measure’ fall within the functional areas of Schedule 4 should

be dealt with in accordance with section 76. In Tongoane and others v National Minister for

Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC) the court upheld the substantial

measure test and went on to reject the “pith and substance” test applied by Parliament.

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Question 4

With reference to the provisions of the Constitution and case law (if any), explain the processes

that are to be followed, as well as the persons and institutions involved, in the appointment of

judges of the Constitutional Court. (6)

The Constitutional Court is composed of 11 judges with the Chief Justice as the head of the

court. A Deputy Chief Justice assists the Chief Justice in carrying out his or her mandate.

Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is

a fit and proper person may be appointed as a judicial officer”. Any person to be appointed to

the Constitutional Court must also be a South African citizen”. Section 174(2) then goes on to

state as follows: “The need for the judiciary to reflect broadly the racial and gender composition

of South Africa must be considered when judicial officers are appointed.” Section 174(3) then

states that the President, as head of the national executive, after consulting meaningfully with the

Judicial Service Commission (JSC) and leaders of opposition parties represented in Parliament,

appoints the Chief Justice and the Deputy Chief Justice. Failure to consult before the decisions

are taken will render the appointments null and void. It is quite evident that the President must

himself or herself make the appointment. What the JSC and opposition leaders actually do is to

advise the President about the suitability of the candidates. The expression “as head of the

national executive” means that the President must act together with the other members of the

Cabinet. This implies that the President must make an appointment with the relevant Ministers

(possibly the Minister of Justice and Constitutional Development and his or her deputy). If the

President follows this procedure and appoints a judge of his or her choice, the appointment will

be valid. However, the appointment will be invalid if the President fails to consult with the JSC

and the leaders of the opposition parties in the National Assembly.

The remaining nine (9) judges of the Constitutional Court are appointed by the President, as

head of the national executive, after consulting the Chief Justice and the leaders of parties

represented in the National Assembly. The JSC plays a more important role in these

appointments, because the JSC must prepare a list of nominees with three names more than

the number of appointments to be made and submit the list to the President. The President may

make appointments from the list, but can also initially refuse to appoint someone from the list

provided by the JSC. If the President refuses to appoint a judge from the list of names provided

by the JSC, he or she must provide the JSC with reasons for the decision. If this happens, the

JSC is required to supplement the list with further nominees and the President must make the

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remaining appointments from the supplemented list. Therefore, if there is one (1) vacancy, the

JSC must submit vier (4) nominees’ names to the President.

Relevant case law to illustrate the application of the constitutional provisions and practice is the

case of Helen Suzman Foundation v Judicial Service Commission and Others (8647/2013) [2014]

ZAWCHC 136 (5 September 2014) (the ‘Gauntlett case’). This is an interesting case because it

concerned the interview by the JSC of Jeremy Gauntlett, who is known as a great legal mind, with

extensive experience, albeit that he is “ascerbic”. Notwithstanding the fact that section 174(1) of

the Constitution merely mentions that the candidate must be suitably qualified and fit and

proper, it appeared as though the only reason why Jeremy Gauntlett’s name was not submitted

to the President as a nominee for the Constitutional Court bench is because he is a white male.

As the Helen Suzman Foundation puts it: “there is a growing perception that talented candidates

for judicial appointment and advancement are being overlooked for reasons that are not clear or

explicit”. This therefore highlights the prominent role which the JSC plays – perhaps to the

detriment of ensuring a judiciary composed of persons able to execute the important tasks

required of the judiciary.

TOTAL [50]

3 Format of the examination paper

The examination paper will consist of five questions covering all the study material, as follows:

1. Question 1, consisting of 20 true or false questions of 1 mark each to be completed on a

mark-reading sheet. This question is similar to Assignment 01 and is based on all the

prescribed study material.

2. Questions 2 to 5 each total 20 marks, but consist of either short questions or longer essay

or problem-type questions of between 4 and 12 marks each.

4 Concluding remarks

We hope that the above feedback will help you to understand what is expected of you in this

module. We wish you success in the coming examination.

Your lecturers

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