Con law semester 1

Constitution

The founding document of a nation from which state authority is derived. It sets out the rights that must be protected and enforced and stipulates how government can and cannot act.

Pre-1994 constitutional system

Based on apartheid, segregation and discrimination. Whites were governed by common law and Black South Africans by customary law controlled by the apartheid government. The Union introduced the Westminster system mainly for whites, with parliamentary sovereignty: Parliament could make or change any law if the correct procedure was followed, with no limit on its power.

Interim Constitution (1994)

Start of the shift to democracy. Created a Government of National Unity (ANC and NP power-sharing), a Bill of Rights, 34 Constitutional Principles to guide the final text, and the Constitutional Court. Criticised as drafted by an unelected body and as a negotiated settlement rather than the will of the people.

Final Constitution (1996)

Drafted by a democratically elected Constitutional Assembly and certified against the 34 Constitutional Principles. Constitutional supremacy (s 1(c), s 2) replaced parliamentary sovereignty, and it contains an extensive Bill of Rights covering civil, political and socio-economic rights.

Functions of a constitution

(1) Establish effective government power: create institutions and allocate power so the state can be governed, including three branches and sub-branches (NA and NCOP). (2) Prevent abuse of power: limit and disperse power among institutions through separation of powers.

Characteristics of constitutionalism

Establishes institutions and structures of government; deals with the formal and legal distribution of power and procedures; determines relationships between institutions and the governed; envisages binding rules for the political community (e.g. elections); and limits public power through the principle of legality.

Principle of legality (rule of law, s 1(c))

Government may act only within the powers given to it by law. Has three parts: lawfulness (authorised by the Constitution or legislation, within its limits), rationality (a rational link between purpose and means), and reasons (an extension of rationality that helps courts assess it). It applies to all exercises of public power that are not administrative action.

Models that shaped the South African Constitution

Westminster (about 20 percent): parliamentary sovereignty, parliamentary government, judicial review. United States: separation of powers and checks and balances. German (largest influence, post-WW2): human dignity, general principles and values, rule of law, and inspiration for the Bill of Rights.

Transformative constitutionalism

The idea that the Constitution is meant to bring deep social, political and economic change after apartheid, towards substantive equality, redistribution of power and resources, eradication of systemic domination and opportunities for all to realise their potential. Coined and developed by Karl Klare and supported by Pius Langa.

Culture of justification (Langa)

Shift from a culture of authority under apartheid to a culture of justification: government must justify every exercise of power. Linked to the shift from rule by law (law as a tool of oppression) to rule of law (supremacy of law, equality before the law, accountability of public power) under s 1(c), s 2 and s 172.

Challenges to transformative constitutionalism

Wealth inequality limiting real equality and representation; poor legal education and awareness of rights; unequal access to courts (s 34); and the danger of excessive judicial activism (courts overstepping and making policy-like decisions) or excessive judicial passivity (courts deferring too much).

Klare: the Constitution as post-liberal

Goes beyond classical liberalism because it includes (1) social rights and substantive equality (ss 26-29 enforceable), (2) positive duties on the state (s 7(2)), (3) horizontality (s 8(2)), (4) participatory governance, (5) multiculturalism and ubuntu, and (6) historical consciousness of past injustice.

Modiri: the Constitution as a liberal negotiated settlement

The Constitution is still largely Western and liberal and should be decolonised. Transformative constitutionalism may hide ongoing inequality; ubuntu was minimised in the final text; radical transformation was compromised to secure political peace; and the Constitution may protect existing power structures.

Separation of powers

A doctrine limiting each branch's authority so public power is not abused and liberty and rights are protected. Four principles: division of government power (trias politica), separate functions, separation of personnel, and checks and balances. In South Africa it is not strict: branches overlap and hold each other accountable.

Counter-majoritarian dilemma

Unelected judges overturn decisions of democratically elected representatives to uphold the Constitution, creating tension between majority rule and constitutional supremacy and rights protection.

Judicial activism versus judicial deference

Activism: courts strongly enforce the Constitution and make policy-like decisions. Deference: courts respect and give weight to the decisions of the legislature or executive but still intervene when something is unconstitutional. Separation of powers requires both.

UDM v Speaker of the National Assembly (secret ballot)

The UDM sought a no confidence vote in the President under s 102 and asked whether the Speaker could allow a secret ballot. Held: the Speaker may allow a secret ballot where it enhances accountability. Ratio: courts must not interfere with Parliament's functions (s 57 internal autonomy) but must ensure Parliament performs its oversight role effectively (s 42(3)).

EFF v Speaker (Nkandla, 2016)

President Zuma ignored the Public Protector's remedial action on Nkandla and Parliament shielded him. Unanimous judgment (Mogoeng CJ). Ratio: the President and Parliament are bound by constitutional obligations, not political discretion (s 83(b), s 55(2)); the Public Protector's remedial action is binding until set aside by a court. Courts act as a check when the other two branches fail.

EFF v Speaker (impeachment, 2017): majority

Jafta J (with Cameron, Froneman, Kathree-Setiloane AJ, Kollapen AJ, Mhlantla and Theron JJ; seven to four): s 89(1) implicitly obliges the National Assembly to make rules specially tailored for impeachment; ad hoc committees and the s 102 no confidence process are not s 89 mechanisms; failing to make rules breached s 89(1) and its oversight duty (s 42(3)). The Court orders Parliament to make rules but leaves their content to Parliament, so it protects rather than breaches separation of powers.

EFF v Speaker (impeachment, 2017): minority

Zondo DCJ (with Mogoeng CJ, Madlanga J and Zondi AJ): Parliament had not failed because its existing rules, including a flexible ad hoc committee, could be used for a s 89 inquiry, and other accountability tools existed (s 102, questions, committees). Courts should defer to Parliament's control over its procedures (s 57). Mogoeng CJ also wrote separately warning against judicial overreach into political and parliamentary terrain. Froneman J, concurring with Jafta J, stressed that accountability mechanisms must work in practice.

Direct democracy

Citizens vote directly on political issues with no representatives; impractical for large societies (s 17 petitions is a related right).

Representative democracy

Citizens elect representatives, often organised in political parties, who vote on their behalf (s 19: right to vote for a party in free and fair elections).

Participatory democracy

Public participation in governance and law-making, encouraged by the Constitution (hearings, submissions). Doctors for Life: Parliament has a duty to facilitate public involvement. South Africa is primarily representative but has participatory elements.

National executive

The branch responsible for the day-to-day running of the state and implementing legislation and policy: the President, Deputy President and Cabinet (ministers).

President: constitutional framework (ss 83-86, 88, 91-92)

s 83: Head of State and head of the national executive who must uphold, defend and respect the Constitution. s 84: presidential powers (e.g. s 84(2)(f) appointing commissions of inquiry). s 85: executive authority vested in the President, exercised with Cabinet. s 86: elected by the NA from among its members. s 88: five-year term, maximum two terms. s 91: President appoints and dismisses the Deputy President and ministers (no more than two ministers from outside the NA). s 92: Cabinet accountable collectively and individually to Parliament.

Impeachment (s 89) versus motion of no confidence (s 102)

s 89: removal for serious violation of the Constitution or law, serious misconduct or inability to perform; needs a two-thirds NA majority; objective, formal grounds. s 102: removes the Cabinet (or Cabinet and President) by a simple NA majority; political and usually follows loss of party support. Mazibuko v Sisulu: the motion of no confidence is a critical tool keeping the executive politically accountable to Parliament.

Head of State powers versus Head of Executive powers

Head of State powers (s 84(2)) are exercised personally: pardons, appointing commissions, assenting to bills, calling elections. Head of Executive powers (s 85) are exercised with Cabinet, such as appointing and removing ministers and implementing legislation. Both are reviewable by courts.

Executive action versus administrative action

Administrative action (public administration affecting rights, s 33) is reviewed under PAJA on procedural fairness, reasonableness and lawfulness. Executive action (President, Cabinet policy decisions) is not generally administrative action and is reviewed under the principle of legality (lawfulness and rationality). The nature of the power exercised decides which applies (SARFU, Masetlha).

Limits on presidential power

Formal limits: the Constitution, courts, legality, judicial review. Political limits: party politics, coalition dynamics, no confidence votes, public pressure. Substantive limits: the content of executive action must be lawful, rational and constitutional (s 1(c) legality). Formally Parliament is stronger, but in practice a majority party often lets the President dominate.

SARFU (President v SARFU)

President Mandela appointed a commission of inquiry into rugby administration with subpoena powers. Ratio: all public power is constrained by the Constitution; the President is not above the law; exercises of executive power are reviewable under legality and rationality, not as s 33 administrative action; courts must still respect separation of powers.

Hugo (President v Hugo, executive limb)

President Mandela pardoned categories of prisoners, including mothers with young children, and fathers claimed discrimination. Ratio: the pardon is a Head of State power exercised personally but remains subject to the Constitution; even broad discretionary executive powers must comply with equality, the rule of law and the Constitution.

Masetlha v President

President Mbeki dismissed the head of the National Intelligence Agency. Held: the President had the authority; executive action is generally not administrative action so s 33 procedural fairness does not automatically apply. Ratio: executive power is subject to legality and rationality, the minimum threshold for all public power, but not necessarily administrative-law procedural fairness.

Albutt v CSVR

President Mbeki's special pardon dispensation for politically motivated offenders excluded victims from participating. Held: the pardon power is broad but must be exercised rationally in light of its purpose; excluding victims was irrational because their input was needed for national unity and reconciliation. Ratio: rationality covers the process as well as the decision, so an irrational procedure can make executive action unconstitutional.

DA v President (Simelane appointment)

President Zuma appointed Menzi Simelane as National Director of Public Prosecutions despite findings questioning his honesty and integrity. Held: irrational because the President failed to consider relevant adverse findings relevant to being fit and proper. Ratio: presidential appointments must be rationally related to the purpose of the power and the rule of law applies to the executive.

Pharmaceutical Manufacturers v President

Rationality is a minimum threshold requirement that every exercise of public power must meet. Linked to the principle of legality, which applies to executive and legislative conduct that is not administrative action.

Ministers and legality (Mansingh, Motau, Solidarity)

The President's powers must be exercised in good faith, rationally and within constitutional limits (Mansingh). Executive power must be rationally connected to its purpose and legality review applies to ministers too (Motau, s 92). Ministers cannot exercise public power arbitrarily (Solidarity v Minister of Health).

Holding the executive accountable: key provisions

s 1(d) accountability, responsiveness and openness; s 2 supremacy; s 41(1)(e) respect for each sphere's powers; s 42(3) and s 55(2) NA scrutiny and oversight; s 83(b) President upholds the Constitution; s 89 impeachment; s 92 Cabinet accountability; s 96 ethical conduct of Cabinet; s 101 executive decisions in writing; s 102 no confidence; ss 181-182 Chapter 9 bodies; s 172(1) courts declare unconstitutional conduct invalid.

Legislature

An elected body that represents the people and sits at the centre of the democratic state (Parliament, Chapter 4, ss 42-80). It embodies separation of powers horizontally and operates vertically within multi-level government. Its key tasks: articulate the aspirations of all, especially the poor; hold the national executive accountable; oversee state resources; and consider, pass, amend or reject legislation.

Parliamentary system and the hung parliament

South Africans elect Parliament and Parliament elects the President, so the legislature and executive overlap (a separation of powers concern). In 2024 the ANC lost its majority (hung parliament) and a Government of National Unity coalition formed, creating instability, bargaining and questions about presidential power over coalition ministers. Party government risks MPs prioritising party loyalty over independent oversight.

Bicameral Parliament

Two houses holding each other accountable. The National Assembly (s 42(3)) represents the people at national level. The National Council of Provinces (s 42(4)) represents provincial interests at national level.

National Assembly composition and electoral system

Between 350 and 400 members elected by proportional representation (s 46(1)), currently 400. Closed-list PR: voters choose parties, seats follow vote share; 200 regional seats and 200 compensatory seats (Electoral Amendment Act 2023), with independents able to compete in regional seats. Disqualification (s 47): sentenced to more than 12 months without the option of a fine. Advantages: fair representation and multi-party democracy; disadvantages: party control over MPs and weaker accountability to voters.

National Assembly functions

(1) Law-making (s 44). (2) Oversight and accountability of the executive (s 55(2), s 42(3)). (3) Electing the President (s 86) and removing him (s 89, s 102). (4) A national forum for debate. (5) A pool from which Cabinet is drawn (Speaker and Deputy Speaker cannot be in Cabinet). (6) Democratic control over key institutions, including taking part in appointing Chapter 9 bodies.

National Council of Provinces composition and functions

90 delegates, 10 per province (6 permanent delegates, plus the Premier or nominee and special delegates), chosen by provincial legislatures. Functions: represents provincial interests (s 42(4)), takes part in law-making (s 68), promotes cooperative government (s 41), regulates its proceedings (s 70), and shares in oversight since Cabinet answers to Parliament (s 92). Ministers must come from the NA, not the NCOP.

NCOP voting by Bill type

s 75: each delegate votes individually, like a normal chamber. s 76: provincial block voting, each province has one vote cast by its delegation head, usually five of nine provinces needed, protecting provincial interests. s 74 amendments: supermajorities in the NA and at least six of nine provinces where provincial matters are affected.

Schedule 4 and Schedule 5 competences

Schedule 4 lists concurrent national and provincial functional areas (e.g. health services, housing, education excluding tertiary, agriculture). Schedule 5 lists exclusive provincial areas (e.g. provincial planning, provincial roads and traffic, libraries other than national, liquor licences). Parliament may legislate on Schedule 5 only where s 44(2) allows it (national interest). s 44(1)(a)(ii) gives Parliament power over Schedule 4 matters and over matters outside Schedule 5.

National residual power and who may introduce Bills (ss 44, 73)

The NA may legislate broadly where the Constitution does not allocate power elsewhere and may assign legislative power. Only a Cabinet member, Deputy Minister, or member or committee of the NA may introduce a Bill in the NA, and only the Minister of Finance introduces a money Bill (s 73(2)); a government department cannot itself introduce a Bill.

Resolving a Schedule 4 conflict (s 146): steps

(1) Is the national law valid (correct process and tagging)? (2) Is the provincial law valid? (3) Is there a genuine conflict? Use the direct conflict test and check for deliberate legislative silence. (4) Does national law prevail under s 146(2)-(3)? s 146(5): provincial law prevails unless s 146(2) or (3) applies. s 146(4): the court must have due regard to the NCOP's approval or rejection of the national law. s 150: prefer a reasonable interpretation that avoids a conflict.

When national law prevails over provincial law in Schedule 4 (s 146(2)-(3))

Where the matter cannot be regulated effectively by individual provinces; or needs uniformity through national norms, standards, frameworks or policies; or is necessary for national security, economic unity, the common market, equal opportunity or equal access to government services, or protecting the environment (s 146(2)). Also where national law prevents unreasonable provincial action prejudicial to other provinces or the country, or national economic policy (s 146(3)).

Direct conflict test and deliberate legislative silence (KwaZulu-Natal Certification)

A conflict exists only where complying with one law means violating the other, and provincial autonomy is respected unless the conflict rules justify a national override. Deliberate legislative silence: Parliament intentionally left a detail unregulated so provinces (or later policy) can fill the gap, which is not a conflict.

Multi-level government (ss 40, 41, 43)

Government is national, provincial and local spheres that are distinctive, interdependent and interrelated (s 40(1)), governed by principles of cooperative government and intergovernmental relations (s 41). Legislative authority is divided among the spheres (s 43): Parliament (s 44), provinces (s 104), municipalities (s 156). South Africa uses integrated (cooperative) federalism with some divided features.

Divided versus integrated federalism

Divided federalism: each level has clearly separate powers with little overlap (USA). Integrated federalism: powers are shared and coordinated across levels with overlap (Germany). South Africa is largely integrated, with some divided features.

Law-making process: steps

(1) Policy formulation: Green Paper (options, not binding), White Paper (final policy), draft Bill approved by Cabinet. (2) Introduction in the NA or NCOP depending on tagging (first reading). (3) Committee review and public participation (ss 59, 72). (4) Bicameral consideration, with a mediation committee if the houses disagree. (5) Presidential assent (s 79). (6) The Bill becomes an Act, still open to constitutional challenge.

Presidential assent (s 79)

The President must assent to and sign a Bill passed by Parliament, but if he has reservations about its constitutionality he must refer it back to Parliament, and may then refer it to the Constitutional Court (as in the Liquor Bill).

Tagging of a Bill

Classifying a Bill to decide how it must be introduced and processed in Parliament, which voting procedure applies and how far provinces and the NCOP are involved. It concerns procedure, not which sphere has legislative power. Incorrect tagging makes the law-making process unconstitutional.

Four Bill types for tagging

s 74: constitutional amendments (highest threshold, supermajorities). s 75: ordinary Bills not affecting provinces (introduced in the NA, which can pass them without the NCOP). s 76: ordinary Bills affecting provinces (Schedule 4 functional areas, strong NCOP role). s 77: money Bills (tax, levies, duties, revenue allocation, introduced by the Finance Minister).

Tongoane v Minister of Agriculture

Rural communities challenged the Communal Land Rights Act, which was tagged as a s 75 Bill. Held: it should have been a s 76 Bill because it affected Schedule 4 functional areas, so it was invalid. Ratio: tagging uses the substantial measure test, looking at all provisions together and their real impact, not the dominant purpose (pith and substance). Wrong tagging invalidates the Act regardless of Parliament's good faith.

Substantial measure test versus pith and substance

Substantial measure (Tongoane): used for tagging; asks whether the Bill's provisions, taken together, fall to a substantial measure within a Schedule 4 functional area. Pith and substance (Liquor Bill): used to decide which sphere has legislative competence, by looking at the Bill's main subject matter and purpose.

Liquor Bill (Ex parte President: In re Liquor Bill)

The President referred the Bill to the Constitutional Court (s 79) on whether it was within Parliament's competence. Held: Parliament could regulate manufacture and wholesale nationally, but retail liquor licensing fell in provinces' exclusive Schedule 5 competence. Ratio: legislative competence is determined by the substance and purpose of the legislation; national law may not intrude on Schedule 5 unless s 44(2) permits.

Public participation provisions

NA: s 57(1)(b) (rules reflect participatory democracy) and s 59(1)(a) (facilitate public involvement). NCOP: s 70(1)(b) and s 72(1)(a). Provincial legislatures: s 118(1)(a). Founding value: s 1(d) democracy, accountability, responsiveness and openness.

Doctors for Life v Speaker: facts and majority

NGO challenged four health Bills because the NCOP and provincial legislatures did not invite written submissions or hold hearings. Majority (Ngcobo J, with Langa CJ, Moseneke DCJ, Madala, Mokgoro, Nkabinde, O'Regan and Sachs JJ): the Constitutional Court has exclusive jurisdiction (s 167(4)(e)); public involvement is a constitutional obligation, not a formality; democracy is more than voting every five years; Parliament must take reasonable steps to give meaningful opportunities to participate. Reasonableness depends on the importance and impact of the Bill, time and resources. The Court does not prescribe steps. The NCOP's passage of two Acts was declared invalid.

Doctors for Life v Speaker: separate and minority judgments

Sachs J concurred, stressing participatory democracy as part of our constitutional design. Yacoob J (with Skweyiya J) dissented: he agreed on jurisdiction but differed on the scope of the s 72 duty, warned against judicial trespass into Parliament's procedures, and doubted that a shortfall in participation should automatically invalidate legislation. Van der Westhuizen J wrote a separate dissent supporting Yacoob J and worried about invalidating laws for procedural failures.

Doctors for Life v Speaker: ratio

Public participation is a constitutional requirement; Parliament must take reasonable steps to facilitate it; reasonableness is context-dependent and assessed objectively; failure can make legislation procedurally invalid.

Mogale v Speaker of the National Assembly (2023)

Activists challenged the Traditional and Khoi-San Leadership Act for lack of consultation with affected rural communities (ss 59(1)(a) and 72(1)(a)). Ratio: meaningful public participation is essential to participatory democracy; inadequate consultation and rushed procedures breach constitutional obligations, so legislation can be invalid.

Parliament's oversight mandate: key provisions

s 42(3) NA scrutinises and oversees executive action; s 55(2) NA must hold the executive accountable; s 89 impeachment; s 102 no confidence; s 181(3) organs of state must assist and protect Chapter 9 institutions; s 237 constitutional obligations must be performed diligently and without delay. Cases: EFF 2016, EFF 2017, UDM.

Exclusive jurisdiction of the Constitutional Court (s 167(4)(e))

Only the Constitutional Court may decide that Parliament or the President has failed to fulfil a constitutional obligation (as in Doctors for Life and the EFF cases).

Judicial review

The power of courts to review exercises of public power and declare them invalid where inconsistent with the Constitution or the law (Chapter 8). Purposes: uphold constitutional supremacy, enforce the rule of law, ensure public power is lawful and rational, and protect rights and democratic accountability.

Public power versus administrative action

Executive, legislative and judicial institutional decisions are public power reviewed under the principle of legality. Administrative action (public administration affecting rights) is reviewed under PAJA on procedural fairness, reasonableness and lawfulness.

Fedsure v Greater Johannesburg

Legislatures (here a local council) exercise public power and are reviewable for legality and rationality.

Judicial authority (ss 165, 172, 173)

s 165(1): judicial authority vests in the courts. s 165(2): courts are independent, subject only to the Constitution and the law, and apply the law impartially without fear, favour or prejudice. s 165(3)-(4): no interference with courts; organs of state must assist and protect them. s 172: courts declare inconsistent law or conduct invalid and make just and equitable orders. s 173: superior courts' inherent power to protect and regulate their process.

Mwelase v Director-General (structural remedies): majority and minority

The Department failed to process labour tenant claims and the court appointed a Special Master. Majority: where the executive persistently fails constitutional obligations, courts may grant intrusive supervisory remedies even if they touch executive functions, because enforcing the Constitution is the court's role and the remedy must remain justified. Minority: separation of powers demands more restraint; courts should not manage executive budgeting and administration and are ill-suited to orders with wide social and economic consequences, though the minority accepted deference should be balanced with activism.

Van Rooyen v The State

Challenge to the independence of magistrates' courts. Held: s 165(2) requires courts to be institutionally protected from improper interference and to be seen as independent and impartial. Ratio: independence has an actual and a perception element, tested objectively by whether a reasonable, informed observer would believe the court can decide fairly; executive influence on appointments does not by itself defeat independence.

SAHRC v Masuku (judicial role in hate speech)

Masuku's statements on Israel, Palestine and Zionists were challenged as hate speech. The Constitutional Court (Khampepe J, unanimous) held the Supreme Court of Appeal erred by testing the statements against s 16(2) instead of PEPUDA s 10 (subsidiarity), applied Qwelane (reading s 10 conjunctively and without hurtful), found the first statement was hate speech and the rest not shown to be, and ordered an unconditional apology. Ratio: courts independently interpret rights and balance dignity, equality and expression using the national legislation.

Judicial appointments (ss 174, 178)

s 174(1): appropriately qualified, fit and proper persons. s 174(2): the judiciary must broadly reflect the racial and gender composition of South Africa. The Chief Justice and Deputy Chief Justice are appointed by the President after consulting the Judicial Service Commission and party leaders in the NA (s 174(3)); other judges come from JSC nominations. s 178 sets the JSC's composition and functions.

Security of tenure and removal of judges (ss 176-177)

Judges have secure tenure (s 176) and may be removed only on grounds of incapacity, gross incompetence or gross misconduct found by the JSC, with a supporting NA resolution of two thirds (s 177).

Helen Suzman Foundation v JSC

JSC appointment decisions are exercises of public power and must comply with legality and rationality. The process must be transparent enough to allow accountability and scrutiny, and inadequate reasons can undermine legality review.

JSC v Cape Bar Council

JSC decisions are exercises of public power and are reviewable; courts may review irrational or procedurally flawed appointment decisions. Deference to the JSC does not exclude constitutional scrutiny.

Chapter 9 institutions

Independent constitutional bodies created to strengthen constitutional democracy and act as watchdogs over state power. Functions: safeguard democracy and accountability; investigate maladministration, rights violations and misuse of public power; and report, recommend and sometimes litigate. They cannot pass or set aside legislation or exercise judicial power.

Chapter 9 institutions listed (s 181(1))

Public Protector; South African Human Rights Commission; Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; Commission for Gender Equality; Auditor-General; Electoral Commission.

Independence and protection of Chapter 9 bodies (s 181)

s 181(2): independent, subject only to the Constitution and the law, impartial, acting without fear, favour or prejudice. s 181(3): other organs of state must assist and protect them to ensure independence, impartiality, dignity and effectiveness (a positive duty). s 181(4): no interference. s 181(5): accountable to the NA and must report annually.

Appointment and removal of Chapter 9 members (ss 193-194)

Appointed by the President on NA recommendation; they must be fit and proper and the body must broadly reflect the country's race and gender composition. The Public Protector and Auditor-General need 60 percent NA support. Removal (s 194) is only for misconduct, incapacity or incompetence, after a committee inquiry and finding, an NA vote, and removal by the President.

Public Protector powers (s 182)

s 182(1)(a) investigate improper conduct in state affairs; s 182(1)(b) report on it; s 182(1)(c) take appropriate remedial action. Powerful but not unlimited: reviewable under legality for unlawful, irrational, vague or ultra vires action.

SAHRC powers (s 184)

Promote respect for human rights and a rights culture; monitor, investigate and report; take steps to secure appropriate redress where rights are violated (s 184(2)(b)); research and educate. It may litigate, mediate and bring strategic cases, but its findings are recommendations.

Auditor-General (ss 188-189)

Audits and reports on government finances and public institutions to ensure public money is used lawfully and effectively; has a fixed, secure term and strong independence.

Chapter 9 as a fourth branch

For: own chapter, powers and institutional protection; supervise and check the executive and legislature; New National Party v Government recognised them as a new constitutional development. Against: accountable to the NA; limited powers; many recommendations non-binding; dependent on Parliament for budgets; cannot issue final court orders. Khaitan calls them guarantor institutions that protect democracy and constitutional commitments without being a formal fourth branch.

Independence versus accountability of Chapter 9 bodies

They are independent (s 181(2)) yet answer to the NA (s 181(5)). Independence protects their constitutional role; accountability provides oversight. Tensions: pressure from the NA, interaction with the executive that appoints and is investigated, and overlap with the three branches. Costs and inefficiency are also criticised.

EFF v Nkandla (Public Protector remedial action)

Public Protector found improper spending on the President's Nkandla home and directed him to repay a reasonable portion; he ignored it. Ratio: remedial action under s 182(1)(c) is binding and must be complied with by state organs, including the President, unless and until set aside by a court on review. Ignoring it without going to court is unlawful self-help that undermines the rule of law. The NA may not simply reject it; it too must act within its oversight duty.

President v Public Protector (remedial action reviewed)

The President challenged remedial directives against the Minister of Finance. Held: the Public Protector acted irrationally and outside her powers under s 182 and the remedial action was set aside. Ratio: Public Protector remedial action must be lawful, rational and procedurally fair and is subject to legality review; she cannot exceed her mandate.

SAHRC v Agro Data (SCA 2024 and Constitutional Court 2026)

Agro Data restricted farm occupiers' access to the borehole; the SAHRC found violations of the rights to water and dignity (and ESTA) and issued directives, then sought a declaration that they were binding. High Court and SCA ([2024] ZASCA 121) refused. Constitutional Court ([2026] ZACC 16, Nicholls AJ, unanimous): s 184(2)(b) ("take steps to secure appropriate redress") means facilitation, not binding remedial power; the SAHRC Act is silent on non-compliance; the Constitutional Assembly recorded that the SAHRC should not have adjudicative powers; EFF 2016 turned on the Public Protector's unique "take appropriate remedial action"; Parliament expressly gave the Auditor-General binding powers; a 2007 regulation declaring findings binding was ultra vires. Ratio: only a court can issue binding relief; if findings are ignored the SAHRC must litigate the underlying dispute, using its report as evidence.

Binding versus non-binding Chapter 9 powers

Binding powers must come from clear constitutional or statutory text and cannot be implied. Public Protector: s 182(1)(c) remedial action is binding unless set aside on review (EFF 2016). SAHRC: s 184(2)(b) gives non-binding recommendations and a duty to take steps to secure redress, usually through courts or the Equality Court, but its findings carry weight and it can compel cooperation with investigations. Auditor-General: binding remedial powers given expressly by the Public Audit Act. No hierarchy exists among Chapter 9 institutio