South African Constitutional Law PDF

STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY BEKINK TEXTBOOK 579-597 SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT CHAPTER 7 CONSTITUTIONAL SECTIONS 181-195 SECTION 181 OF THE CONSTITUTION AND STATE INSTITUTIONS SUPPORTING DEMOCRACY • Section 181 (1)= provides a list of the state institut...

STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY BEKINK TEXTBOOK 579-597 SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT CHAPTER 7 CONSTITUTIONAL SECTIONS 181-195 SECTION 181 OF THE CONSTITUTION AND STATE INSTITUTIONS SUPPORTING DEMOCRACY • Section 181 (1)= provides a list of the state institutions supporting democracy; (2)= provides for independence and impartiality of these state institutions, these institutions are only subject to the Constitution; (3)= other state organs should ensure independence of these institutions through legislation; (4)= no person may interfere with the functioning of the chapter 9 institutions; (5) = the chapter 9 institutions are accountable to the National Assembly and must report their activities to parliament once a year VARIOUS STATE INSTITUTIONS • Section 181 provides for the establishment of state institutions with the purpose of strengthening constitutional democracy. • Section 181 (1) provides for the following institutions (a) Public protector; (b) South African Human Rights Commission; (c) Commission for the Promotion and Protection of the Rights of the Cultural, Religious and linguistic communities; (d) The Commission for Gender Equality; (e) The Auditor General (f) The Electoral Commission SECTION 182 - FUNCTIONS OF THE PUBLIC PROTECTOR • Section 182 (1)(a) investigate any alleged any improper conduct in public administration; (b) report on the above conduct; (c) take appropriate remedial action (2) perform functions and powers in terms of national legislation (3) the public protector may not investigate court decisions; (4) must be accessible to all persons and communities (5) report must be open to the public unless if determined in terms of national legislation which would require for the report to be confidential PUBLIC PROTECTOR- SECTION 182 /FUNCTIONS • Control over public administration of the state; • Previous similar office- ombudsman ( moved to a more gender-neutral term); • Investigates maladministration within the state; • Performs an important role within the public administration and government of South Africa SECTION 183- TENURE • Section 183 - The public protector’s term is a non-renewable period of seven years PUBLIC PROTECTOR • On Wednesday, she released the fruits of two years of investigation into the state upgrade of Nkandla in a report titled Secure in Comfort, raining down findings of maladministration, improper behaviour, ethical violations and procedural failings on several ministers and their departments, and on Zuma himself; • Madonsela found he had improperly benefited from a grand, excessive, opulent and obscene government upgrade to his homestead and should repay a "reasonable percentage" of about R20-million worth of upgrades. • State Capture? • Public Procurement? SOUTH AFRICAN HUMAN RIGHTS COMMISSIONSECTION 184 OF THE CONSTITUTION • (1) duties of the SAHRC (a) promote respect for human rights and a human rights culture thereof; (b) promote the protection of human rights; (c) monitor and assess observance of human rights (2) powers of the SAHRC (a) investigate and report observance of human rights; (b) take steps to secure appropriate redress where human rights have been violated SOUTH AFRICAN HUMAN RIGHTS COMMISSIONSECTION 184 OF THE CONSTITUTION • (2) powers of the SAHRC; (c) carry out research; and (d) to educate; (3) require relevant organs to update commission with recommendations towards realization of socio-economic rights; (4) additional powers prescribed by national legislation SOUTH AFRICAN HUMAN RIGHTS COMMISSION • While Education Department officials visited the family of Enoch Mpianzi on Monday 20 January, the Human Rights Commission revealed that it was in discussion with the family around their legal options and was prepared to file a civil suit against the department and camp officials for their role in the death of 13-year-old Enoch last week. • Enoch was on a Grade 8 orientation camp held by Parktown Boys High School at the Nyati Bush and River Breakaway in Brits, North-West when he went missing on Wednesday 15 January during a “water activity”. THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES: SEC 185 • Sec (1) objects: (a) promote respect for rights of cultural, religious and linguistic communities; (b) promote tolerance and national unity; (c) recommend the establishment of a cultural council for community; (2) power to investigate and report on issues concerning rights of cultural, religious and linguistic communities (3) Commission may report any matter which falls within its powers and functions to the South African Human Rights Commission for investigation THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES: SEC 186COMPOSITION • Sub sec (1) number of members of the Commission and term must be prescribed by national legislation; • (2) (a) commission must be broadly representative of diverse South African cultural and religious groups • (b) commission must be broadly representative of the South African gender composition THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES: SEC 185 • (4) The Commission has the additional powers and functions prescribed by national legislation COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES • The Commission for the Promotion and Protection of the Rights of Cultural Religious and Linguistic Communities is recommending the closure of illegal initiation schools in the Eastern Cape. • The death toll of teenage boys who have died this season has risen to 34. • It's still unclear how the boys passed away, with post-mortem results yet to be finalised. THE COMMISSION FOR GENDER EQUALITY- SEC 187 • (1) must promote gender equality ; (2) monitor, investigate, research lobby and advise and report on issues concerning gender inequality • (3) additional powers as prescribed by national legislation THE COMMISSION FOR GENDER EQUALITY • CGE intervenes in Muslim marriages ConCourt case • The Commission for Gender Equality (CGE) has welcomed the Constitutional Court's judgment that declared the Marriage Act 25 of 1961 and Divorce Act 70 of 1979 inconsistent with sections 9, 10, 28 and 34 of the Constitution. OFFICE OF THE AUDITOR-GENERAL SEC 188 • Sec (1) report on accounts, financial statements and financial management of(a) national and provincial state departments; (b) municipalities and (c) any other institution or accounting entity required to be audited in terms of national legislation (2) may also audit (a) any institution funded from the National Revenue Fund or a Provincial Revenue Fund or by a municipality (b) institutions authorized in terms of law to receive money for a public purpose….. OFFICE OF THE AUDITOR-GENERAL SEC 188 • (3) AG must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority prescribed by national legislation. All reports must be made public; • (4) The AG has the additional powers and functions prescribed by national legislation OFFICE OF THE AUDITOR-GENERAL TENURE-SEC 189 • The AG must be appointed for a fixed, non-renewable term of between five and ten years. OFFICE OF THE AUDITOR-GENERAL • Plays an important role over the control of government finances and expenditure; AUDITOR -GENERAL • Only 38 municipalities out of 257 achieved clean audits in the 2021-2022 local government audit outcomes, a consequence of skills shortages, poor accountability and poor leadership, the standing committee on the auditor general heard. • Auditor general Tsakani Maluleke also told the committee that municipalities racked up R4.74 billion in fruitless and wasteful expenditure, R25.47 billion in unauthorised expenditure, and that the R1.6 billion spent on consultants had proven ineffective. INDEPENDENT ELECTORAL COMMISSION-SEC 190 • Sec (1) duties (a) manage elections; (b) ensure free and fair elections; (c) declare results within period prescribed by legislation (2) has additional powers and functions prescribed by national legislation INDEPENDENT ELECTORAL COMMISSION-191 COMPOSITION • Commission must be composed of at least three persons THE ELECTORAL COMMISSION • A case of alleged electoral fraud has been opened with the South African Police Services in the Nkomazi Municipality in Mpumalanga following an incident during the municipal ward by-elections held yesterday (Wednesday 9 December 2020). • The case was opened after a party agent raised the alarm, claiming two voters had been allowed to vote in the ward 15 by-election despite not being on the relevant segment of the voters’ roll and not residing in the ward. • Immediately after receiving the complaint, the Electoral Commission’s representative opened a case with the SAPS and three election officials were immediately relieved of their duties. INDEPENDENT BROADCASTING AUTHORITY-SEC 192 • Regulates broadcasting in the public interest, and ensure fairness and diversity of views broadly representing South African society APPOINTMENTS- SEC 193 • Sec (1) public protector and members of any commission must be women or men who(a) are South African citizens; (b) are fit and proper to hold the specific office; (c) comply with any other requirements prescribed by national legislation (2) commissions must reflect race and gender compostition; (3) AG must be a fit an proper person(woman/man), South African and must have specialized experience in auditing, state finances and auditing; APPOINTMENTS- SEC 193 • Sec 4 President on recommendation of the National Assembly must appoint the Public Protector and the Auditor General and members of; 4 (a) the South African Human Rights Commission; (b) the Commission for Gender Equality; and (c) the Electoral Commission 5 The National Assembly must recommend persons(a) nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly APPOINTMENTS- SEC 193 Sec (5) (b) approved by the Assembly by a resolution adopted with a supporting vote(i) 60 percent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector or the Auditor General; or (ii) Of a majority of the members of the Assembly, if the recommendation concerns the appointment of a member of the commission (6) The involvement of civil society in the recommendation process may be provided for as envisaged in section 59 (1) (a)….. REMOVAL- SEC 194 • Sec (1) Public protector, Auditor General or a member of a Commission may be removed from office on (a) the ground of misconduct, incapacity or incompetence; (b) A finding to that effect by a committee of the National Assembly; (c) The adoption by the Assembly of a resolution calling for that person’s removal from office; (2) (a) resolution for removal must be adopted with a supporting vote of at least two thirds of the members of the Assembly ( Public protector/ Auditor General); (b) a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly REMOVAL- SEC 194 Sec (3) the president (a) may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and (b) Must remove a person from office upon adoption by the Assembly of the resolution calling for that person’s removal…. PROCESS FOR REMOVAL –SECTION 194 • Section 194 of the Constitution makes provision for the removal from office of the heads and commissioners of the various Chapter 9 institutions on the grounds of misconduct, incapacity or incompetence.2 On 3 December 2019, the National Assembly, to whom Chapter 9 institutions are accountable, adopted the Rules regulating the removal of the office-bearers of these institutions. PROCESS FOR REMOVAL- SECTION 194 • The removal process consists of 17 steps which are initiated by filing a notice to remove an incumbent from office, with the Speaker of the National Assembly. If the Speaker is satisfied that the motion complies with the criteria set out in the Rules, the Speaker proceeds to appoint an independent panel4 tasked with the duty to determine whether a prima facie case for the removal of the office-bearer exists.5 The panel must submit a report containing its recommendations and reasons therefore to the Speaker. Thereafter, the report is considered by the National Assembly to determine whether to proceed with the removal process in terms of section 194 of the Constitution. PROCESS FOR REMOVAL- SECTION 194 • Should the process proceed, a committee consisting of members of the National Assembly is established to conduct a formal enquiry.7 The Rules afford the officebearer the right to be heard and to legal representation during the enquiry. However, the legal representative may not participate in the enquiry.8 The committee must produce a report with its findings, recommendations and reasons for the recommendations.9 If the committee recommends that the office-bearer should be removed, the removal must be placed before the National Assembly to vote in terms of section 194(2) of the Constitution. If two-thirds of the members of the National Assembly vote in favour of the removal, the office-bearer must be removed by the President in terms of section 194(3)(b) of the Constitution