PBL 220 Exam Notes 2024 PDF

1 Pass and Prosper PBL 220 EXAM NOTES 2024 Theme 1: The Judiciary Introduction Overview ❖ The Judiciary refers to the courts of South Africa. ❖ Section 165 of the Constitution...

1 Pass and Prosper PBL 220 EXAM NOTES 2024 Theme 1: The Judiciary Introduction Overview ❖ The Judiciary refers to the courts of South Africa. ❖ Section 165 of the Constitution Provides that the judicial authority of the Republic vests in the courts. Provides that the courts are independent. ❖ Section 166 of the Constitution provides for the Judicial System: Constitutional Court – S167 Supreme Court of Appeal – S168 High Court – S169 Other Courts – S170 The Judiciary Service of a Chief Justice ❖ A chief justice may serve at the Constitutional Court for: A period of 12 years + minimum 3 years at another court. A straight 15-year period ❖ The President may request such a judge to continue to serve as a Chief Justice for an additional period as determined by the President. ❖ Section 176 of the Constitution provides for Terms of Office and Remuneration of Judges. Constitutional Jurisdiction and the Right to Religion ❖ Womens Legal Centre Trust (NB) Constitutional Court confirmed the SCA ruling which legally recognizes Muslim marriages, and declares certain sections of the Marriage Act and Divorce Act unconstitutional. The Constitutional Court was approached to give finality to the decision. When other courts make rulings on constitutionality, they have no force until they are confirmed by the Constitutional Court. The Public Protector ❖ The Public Protector impeachment inquiry has gone ahead despite Mkhwebane’s renewed recission bid. ❖ After the 2019 elections there were no parliamentary rules for the removal of the head of a Chapter 9 Institution in terms of section 194 of the Constitution. ❖ Section 194 provides: For the removal of the Public Protector, Auditor General or member of commission on: Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  2 Pass and Prosper ▪Ground of misconduct, incapacity or incompetence. ▪Finding to the effect by a committee of the National Assembly; and ▪ The adoption by the Assembly of a resolution calling for that person’s removal from office. Such a Resolution requires (NB): ▪ 2 Thirds Majority for the Auditor General or Public Protector ▪ Majority of members for a member of the Commission. The President ▪ 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 ▪ Must remove a person from office upon adoption by the assembly of the resolution calling for that person’s removal. Socio Economic Rights ❖ The Life Esidimeni Tragedy. ❖ Involved the relocation of patients from suitable healthcare facilities to lesser funded ones, some without certification. ❖ Many patients died. ❖ The Judicial inquest is still ongoing. Judicial Overview Authority ❖ Consider the mechanical application of the law. ❖ Consider transformative constitutionalism. ❖ Consider judicial transformation. ❖ Consider how decolonization affects the judiciary and what the concept entails for the judiciary. ❖ Consider judicial authority in South Africa. ❖ Consider the structure of the South African judiciary. Constitutional Supremacy ❖ See section 1(c) of the Constitution, which provides that South Africa is founded on constitutional supremacy. ❖ Section 2 provides that the Constitution is the Supreme Law of the Republic. ❖ Law or conduct inconsistent with it is invalid. ❖ Obligations imposed by it must be fulfilled. ❖ The various implications: Primarily that the rules in a Constitution both establish and constrain the exercise of state power. A state can only act in terms of its Constitution. If the state exceeds the bounds of the Constitution its conduct is legally invalid. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  3 Pass and Prosper Parliamentary Supremacy ❖ Constitutional supremacy is often contrasted with parliamentary sovereignty. ❖ It occurs where the legislature has the supreme law-making power. There is no rule that the parliament cannot make or repeal. The Westminster model is such a system. ❖ Under Apartheid, South Africa also functioned under parliamentary sovereignty. Parliamentary Sovereignty = Legislature Supreme = Apartheid Constitutional Supremacy = Constitution Supreme = Republic Separation of Powers ❖ Also known as trias politica (NB) in latin, establishes three independent arms of state. Executive ▪ Empowered to enforce law. ▪ Members of cabinet and ministers. Legislature ▪ Empowered to make laws. ▪ Consists of members of parliament. Judiciary ▪ Empowered to interpret laws. ▪ Consists of judges. ❖ Each of the arms holds the others accountable through mutual system of checks and balances (NB). The Legislature can remove judges who are guilty of gross misconduct. The Judiciary can prevent the Legislature from passing laws that are contrary to the Constitution. ❖ The rationale behind the system is as follows: History shows that power was often concentrated in a single ruler. This prevented rulers from being held accountable. Whatever they decided was law, was law and there were no ways to challenge it. In a separated system, checks and balances prevent these issues. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  4 Pass and Prosper Transformative Constitutionalism ❖ A key feature of the Constitution is that it wants to transform South Africa. ❖ It seeks to move away from its deeply divided and unequal past. ❖ Instead it wants to move towards a society founded on equality, dignity and freedom. ❖ Thus, it does not seek to maintain status quo. ❖ Transformative Constitutionalism includes: Endorsement of justiciable socio-economic rights and substantive equality. Endorsement of legal reasoning that is conscious of the interplay between morality and law. Demands that lawyers are aware of how the law does and can play a role in affecting power relations, access to resources and human dignity. It also demands that lawyers understand that legal reasoning is heavily influenced by a lawyer’s political and moral convictions, especially when the law is ambiguous or vague. This is all to ensure that society moves towards a better version of itself. ❖ Transformative Constitutionalism and the Judiciary Focuses on substantive equality and substantive justice. Comprises of a deliberate effort to empower previously excluded segments of the society through devices such as the protection of socio-economic rights. It requires less emphasis on technicalities and procedure so as to maximize the realization of substantive rights. Transformative constitutionalism places a lot of faith in the law as an instrument for social and political change. Its criticism however is that it obscures law and politics. Judgement reflective of transformative constitutionalism include: ▪ National Coalition for Gay and Lesbian Equality (NB) ▪ S v Makwanyane (NB) Transformative constitutionalism requires of judges as guardians of the socio-political transformation project to commit to doing more with the law. Requires a historical self conscious judge who pays regard to the legal history. It is a form of activism in the adjudication of rights. Mechanical Interpretation and Application of the Law ❖ The Judiciary once operated under Parliamentary Sovereignty, and this involved upholding blatantly discriminatory and unjust Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  5 Pass and Prosper legislation. They contributed to legitimizing and sustaining the Apartheid system. ❖ Judges were regarded as mere mechanical interpreters of the law. ❖ The function of judges was seen by many as to merely ascertain the intention of the apartheid legislature through the text of the legislation and then to give effect to that intention, no matter how nefarious the intention might have been. ❖ Most judges believed that they could employ only limited interpretational aids in the event of the ambiguity or inconsistency, or if adherence to the ordinary meaning of the text would result in absurdity. ❖ They adhered to the notion that any modifications, corrections or additions to the text should be left to the legislature as the government branch responsible for making law. ❖ These judges were thus constrained under the system of parliamentary supremacy. Judicial Transformation ❖ Section 174(2) of the Constitution Provides for the need for the judiciary to reflect broadly the racial and gender composition of South Africa and must be considered when judicial officers are appointed. ❖ This stems from the fact that in the pre-democratic era, the judiciary was composed almost entirely of white males drawn from the elitist and privileged ranks of the ruling minority. ❖ Judicial appointees were drawn primarily from the ranks of senior counsel practicing as advocates at various bars in South Africa. Decolonization and the Judiciary ❖ The colonial encounter fundamentally changed the way in which customary law was applied and developed in apartheid South Africa. ❖ Customary law was preserved, upgraded and frozen out of relevance to the flux of the traditional community’s life. ❖ Bhe v Khayelitsha Magistrate ❖ Shilubana v Nwamitwa Evidenced the preservation, upgrade and freezing out of relevance to the flux of traditional community life. Focused on the development of customary law through the lens of either the common law or the Constitution. ❖ This puts the focus on the relevance of judicial structures that/who would be able to truly deal with living customary law as reflected by the opinions and evidence given by villagers on customs. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  6 Pass and Prosper Judicial Section 165 of the Constitution Authority ❖ The judiciary is in charge of legal adjudication which entails that in their functioning they find the law, they interpret the law and then apply the law. ❖ Judicial authority is importantly exercised by courts and they are known as judicial bodies. ❖ Judicial authority entails the power to resolve disputes through determining how the applicable law should be applied to a specific dispute. ❖ It is important to also take into account, in the process of adjudication, the judiciary makes law in the secondary sense. Section 165 of Constitution Summary of ss 1-6 ❖ S165(1) The Judicial authority vests in the courts ❖ S165(2) Courts must independent and impartial and subject only to the Constitution ❖ S165(3) Provides a guarantee against interference with the functioning of courts. ❖ S165(4) Organs of State, through legislative and other means, must assist and protect the court to ensure the independence impartiality, accessibility and effectiveness of the courts ❖ S165(5) Provides that an order of courts binds all persons. ❖ S165(6) Provides that the chief justice is the head of the judiciary. Section 166 of the Constitution (Hierarchy of Courts) ❖ The Constitutional Court ❖ The Supreme Court of Appeal ❖ The High Court of South African and any High Court of appeal that may be established by an Act of Parliament to hear appeals from any court of status similar to the High Court of South Africa. ❖ The Magistrates Court ❖ Any other court established or recognized in terms of an Act of Parliament, including any court of status similar to either the High Court of South Africa or the Magistrates’ Court. Constitutional Court – Section 167 of the Constitution ❖ Headed by the Chief Justice. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  7 Pass and Prosper ❖ The Chief Justice exercises responsibility over the establishment and monitoring of the norms and standards for the exercise of the Judicial functions of all courts. S167(1) S165(6) ❖ The Deputy Chief Justice serves as the deputy leader of the judiciary. S167(1) ❖ The Chief Justice and Deputy Chief Justice take their place alongside nine other judges of the Constitutional Court. ❖ The seat of the Constitutional Court is Johannesburg. Supreme Court of Appeal – Section 168 of the Constitution ❖ The Appellate Division was renamed the Supreme Court of Appeal S166(b) ❖ The SCA is headed by the President of the SCA who is assisted by the Deputy President. S168(1) ❖ The seat of the SCA is in Bloemfontein. ❖ Both the Constitutional Court and Supreme Court of Appeal have Jurisdiction across the Republic. High Court/s – Section 169 of the Constitution ❖ The creation of the Constitution also created a number of High Courts S 169 ❖ The High Court of South Africa consists of Divisions determined by an Act of Parliament S169(2) ❖ The High Court functions as a superior court and acts as both a court of first instance and as a court hearing appeals from the lower courts. ❖ High Courts have geographically limited jurisdiction. ❖ Each Division of the High Court consists of a Judge President and one or more Deputy Judges present, ❖ The following Divisions exists: Eastern Cape Division, with its main seat in Grahamstown Free State Division, with its main seat in Bloemfontein Gauteng Division, with its main seat in Pretoria Kwazulu-Natal Division, with its main seat in Pietermaritzburg Limpopo Division, with its main seat in Polokwane Mpumalanga Division with its main seat in Nelspruit Northern Cape Division, with its main seat in Kimberly Nort West Division, with its main seat Mahikeng Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  8 Pass and Prosper Western Cape Division, with its main seat in Cape Town. Magistrates Court – Section 170 of the Constitution ❖ Magistrates’ courts and all other courts are empowered in terms of section 170 of the Constitution to decide any matter determined by an Act of Parliament. ❖ Magistrates’ Court may not enquire into or rule on the constitutionality of any legislation or conduct of the President. Superior Specialist Courts ❖ The Labour Court S151 of the LRA ❖ The Land Claims Court S22 of the Restitution of Land Rights Act ❖ The Tax Court S8(3) of the Income Tax Act ❖ The Children’s Court ❖ The Maintenance Court ❖ The Domestic Violence Courts Established in terms of the Domestic Violence Act ❖ Apart from the Equality Courts, the above courts do not usually play a direct role in the adjudication of constitutional issues. Importance Overview of the ❖ Pharmaceutical Manufacturers of South Africa: In re: Ex parte Judiciary in a President of the Republic of South Africa 2000 (CC) Democratic Rejection of the principle of parliamentary sovereignty Country Rule of law Control of public power Judicial review of legislation and testing of conduct against the Constitution. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  9 Pass and Prosper Theme 1 (Extended) - Constitutional Jurisdiction Introduction Overview ❖ Some key terms to consider: Constitutional Jurisdiction Exclusive Jurisdiction Direct Access to the Constitutional Court Concurrent Jurisdiction Other Courts Powers of Courts in Constitutional Matters Section 167 The Constitutional Court ❖ A summary of the section provides the following: There is a Chief Justice, Deputy Chief Justice and 9 other Judges. 8 Judges (minimum) must hear a matter (NB) It is the highest court in constitutional matters. It has exclusive jurisdiction the final outcome of constitutional matters. Only the Constitutional Court can give effect to orders of invalidity of legislation or other law. Direct access is permitted in limited instances. Jurisdiction of the Constitutional Court involves issues of interpretation, protection or enforcement of the Constitution. Constitutional Jurisdiction ❖ General It is the power or competence of a court to hear and adjudicate and to determine and dispose of a legal dispute. This jurisdiction is often linked to the kinds of remedies sought. The Constitution grants jurisdiction only to certain courts to award certain remedies pertaining to Constitutional matters. ❖ The Division The Constitutional Court’s jurisdiction can be divided into: ▪ Concurrent Jurisdiction Exercised alongside the High Court and Supreme Court of Appeal. The Constitution (1996) provides for this concurrent jurisdiction for all direct challenges to the constitutionality of all forms of legislation. Thus, any such challenge must first be lodged in the High Court. If the High Court or SCA declares it invalid, the Constitutional Court must confirm this order of invalidity before it gains any force. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  10 Pass and Prosper ▪ Exclusive Jurisdiction There are other matters that only the Constitutional Court can decide on. Reasons for Exclusive Jurisdiction ❖ Women’s Legal Centre Trust v President of the Republic of South Africa Draw on the Court’s political legitimacy Reflects its special status as guardian of the Constitution Avoid tension with other arms of government ❖ Examples They decide disputes between organs of State in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs. They decide on the constitutionality of any parliamentary or provincial Bill referred to it by the President or the relevant Premier in terms of section 79 or 121 of the Constitution. Exclusive jurisdiction to decide on applications by members of the National Assembly or at least 20% of the members of the provincial legislature. They have exclusive jurisdiction to decide on the constitutionality of any amendment to the Constitution. They have exclusive jurisdiction to decide that the Parliament has failed to fulfil a constitutional obligation. They have the exclusive jurisdiction to certify a provincial constitution in terms of Section 144. Supreme Court of Appeal – Constitutional Jurisdiction ❖ Court of Final Instance (NB) SCA → Non-Constitutional Matters. Constitutional Court → Constitutional Matters. ❖ Interim Constitution SCA had no jurisdiction to deal with constitutional matters. ❖ 1996 Constitution SCA awarded the jurisdiction to deal with constitutional matters. Section 168 The Supreme Court of Appeal ❖ General Provides for a President, Deputy President and other judges as stipulated by national legislation. Quorum as per national legislation. They only decide on appeals. Section 169 The High Court of South Africa ❖ General Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  11 Pass and Prosper May decide on Constitutional matters in terms of section 167(6) of the Constitution Provides for different High Court divisions Provides for a Judge President, Deputy Judge President and a number of judges as specified in terms of an Act of Parliament Section 170 Other Court ❖ All courts other than those referred to in Sections 167, 168 and 169 may decide any matter determined by an Act of Parliament, but a court of a status lower than the High Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any conduct of the President. Section 172 Powers of Courts in Constitutional Matters ❖ Section 172(1) When deciding a Constitutional Matter the court: ▪ Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and ▪ May make an order that is just and equitable including: An order limiting the retrospective effect of the declaration of invalidity; and An order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. ❖ Section 172(2) (NB!) The SCA, High Court or other Court of similar status may make rulings as to the Constitutional Validity of: ▪ An Act of Parliament ▪ A Provincial Act ▪ Any conduct of the President Such an order has no force unless confirmed by the Constitutional Court A court that makes a ruling of Constitutional invalidity may: ▪ Grant temporary interdict or other temporary relief to party; or ▪ Adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct. National legislation must provide for the referral of an order of Constitutional invalidity to the Constitutional Court Any person or organ of state with sufficient interest may appeal or apply directly to the Constitutional Court to confirm or vary an order of Constitutional Invalidity by a court in terms of this subsection. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  12 Pass and Prosper Case Study Doctors for Life International v The Speaker of the National Assembly 1 ❖ Facts The Applicant (Doctors for Life) had applied directly to the Constitutional Court challenging the validity of certain Bills. The application was originally brought against the Speaker of the National Assembly and the Chairperson of the National Council of Provinces. ❖ Arguments Made by Applicant DFL argued that Parliament failed to fulfil its constitutional obligation to facilitate public involvement when it passed four Bills, all of which related to health issues. These Bills include: ▪ The Sterilization Amendment Bill ▪ The Traditional Health Practitioners Bill ▪ The Choice on Termination of Pregnancy Amendment Bill ▪ The Dental Technicians Amendment Bill However, the DFL’s complaint was confined to the process followed by the NCOP. DFL Also argued that the Constitutional Court is the only court that could hear its application because it involved failure by Parliament to fulfil its constitutional obligation. ❖ Arguments made by Respondent The respondent argued that they did comply with their respective duties to facilitate public involvement in the passing of the Bills. They also argued that this obligation to facilitate public involvement only requires that the public be given an opportunity to make either written or oral submissions sometime during the process of making laws. The Respondents accepted that the Constitutional Court is the only court that could hear the application. ❖ Held The Court had to consider four questions: ▪ Whether the Constitutional Court is the only court which can hear a matter of this nature. ▪ Whether it is competent for the Court to grant declaratory relief in respect of the proceedings of Parliament. ▪ The nature and scope of the Constitutional Obligation of a legislative organ of state to facilitate public involvement in the law-making process. ▪ Whether on the facts of the case the NCOP complied with that obligation when passing the health legislation under challenge, and if it did not, the consequences of its failure. Ngcobo J: ▪ Held that the Constitutional Court is the only court which is capable of hearing a challenge of this nature because Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  13 Pass and Prosper the challenge involved a decision on whether Parliament had failed to fulfil a constitutional obligation. Case Study Sonke Gender Justice NPC v President of the Republic of South Africa 2 ❖ Facts The treatment of incarcerated persons and the conditions in which they are held lie at the heart of this application. The Bill of Rights grants every detained person the rights to: ▪ Life, ▪ Dignity, ▪ Bodily security and ▪ Conditions of detention that are consistent with human dignity; Sonke launched a constitutional challenge to the Act in the High Court, Western Cape Division, Cape Town (High Court). ▪ The first to sixth respondents proceedings included: The President of the Republic of South Africa, The Minister of Justice and Correctional Services (Minister of Justice), The National Commissioner of Correctional Services (National Commissioner), The Inspecting Judge for Correctional Services (Inspecting Judge), the Minister of Finance and The Minister of Public Service and Administration. ▪ The President, Minister of Justice and National Commissioner opposed the relief sought by Sonke in the High Court. ❖ The Court had to Deal With The High Court’s ruling of constitutional invalidity. In terms of sections 167(5) and 172(2)(a) of the Constitution, the Constitutional Court must confirm any such order for it to have force. Case Study Economic Freedom Fighters v Speaker of the National Assembly; 3 Democratic Alliance v Speaker of the National Assembly ❖ Facts Several South Africans, including a Member of Parliament, lodged complaints with the Public Protector concerning aspects of the security upgrades that were being effected at the President’s Nkandla private residence. This triggered a fairly extensive investigation by the Public Protector into the Nkandla project. The Public Protector’s report was submitted not only to the President, but also to the National Assembly presumably to facilitate compliance with the remedial action in line with its constitutional obligations to hold the President accountable. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  14 Pass and Prosper For well over one year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. ❖ Exclusive Jurisdiction The exclusive jurisdiction of this Court is governed by section 167(4)(e) of the Constitution which says: ▪ Only the Constitutional Court may decide that Parliament or the President has failed to fulfil a constitutional obligation. ❖ The Following Outcome Dissatisfied with this outcome, the EFF launched this application, claiming that it falls within this Court’s exclusive jurisdiction. It, in effect, asked for: ▪ An order affirming the legally binding effect of the Public Protector’s remedial action; ▪ Directing the President to comply with the Public Protector’s remedial action; and ▪ Declaring that both the President and the National Assembly acted in breach of their constitutional obligations; Section 172(2)(a) confers jurisdiction on the Supreme Court of Appeal, the High Court and courts of similar status to pronounce on the constitutional validity of laws or conduct of the President. This is the responsibility they share with this Court – a terrain that must undoubtedly be adequately insulated against the inadvertent and inappropriate monopoly of this Court. An interpretation of section 167(4)(e) that is cognisant of the imperative not to unduly deprive these other courts of their constitutional jurisdiction, would be loath to assume that this Court has exclusive jurisdiction even if pleadings state strongly or clearly that the President or Parliament has failed to fulfil constitutional obligations. Case Study Women’s Legal Centre Trust v President of South Africa and Others 4 Faro v Bingham Esau v Esau ❖ Facts The Plaintiff (Esau) claims that the failure on the part of the Cabinet and the Minister of Justice (Second and Third Defendants) to initiate and prepare legislation providing for the recognition of Muslim marriages as valid marriages in South Africa and regulating the consequences of such recognition, discriminates against Muslim women married in terms of Muslim rites on the grounds of their gender and/or their religion and is inconsistent with sections 9(3) and 7(2) of the Constitution. This is based primarily on an alleged breach of the Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  15 Pass and Prosper right to equality on the grounds that Muslim women are unfairly discriminated against. Esau calls for a declaration that the aforementioned failure is inconsistent with the Constitution and directing the Cabinet and the Minister of Justice to prepare and initiate the required legislation within 18 months. Further, Esau prays for a declaration that a de facto monogamous marriage concluded in terms of Muslim rites shall be regarded as valid for the purposes of the Matrimonial Property Act 88 of 1984 (‘Matrimonial Property Act;), the Divorce Act and the common law duty of support upon divorce. ❖ Why this was not referred to the Constitutional Court The Court had considered whether it was necessary. Section 172(2)(a) holds that the failure to fulfil constitutional obligations by the State includes the President. However, the section provides that the High Court may rule on it, but it has no force until confirmed by the Constitutional Court. This analysis is confirmed in the Pharmaceutical Manufacturers case, as essentially the Constitutional Court is simply required to make all final decisions concerning the actions of the highest organs of State. Case Study Secretary of the Judicial Commission of Inquiry into Allegations of State 5 Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyilekisa Zuma ❖ Facts This matter concerns the question whether Mr. Zuma is guilty of contempt of court for failure to comply with the order that this Court made in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma (CCT 295/20). In that order, this Court directed Mr. Zuma to comply with summons issued by the Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Commission) and to appear and give evidence on dates determined by the Commission. The order also directed Mr. Zuma to comply with directives lawfully issued by the Commission. Notwithstanding that order, Mr. Zuma did not appear before the Commission on the dates determined by the Commission, nor did he file any affidavits in accordance with the Commission’s directives. ❖ The Law Section 167(6)(a) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  16 Pass and Prosper ▪ Provides for direct access to this Court: National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—(a) To bring a matter directly to the Constitutional Court, when: A case for urgent direct access has been made out; or Direct access will be granted when it is in the interests of justice to do so. The matter is self-evidently extraordinary. It is thus in the interests of justice to depart from ordinary procedures. Never has this Court’s authority and legitimacy been subjected to the kinds of attacks that Mr. Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened. Key Overview Sections ❖ Section 34 Access to courts in constitutional matters It is not restricted to civil and criminal matters ❖ Section 167(4), (5), (6) and (7) Matters where the Constitutional Court has exclusive jurisdiction Only the Constitutional Court may: ▪ Decide disputes between organs of state, ▪ Decide on the Constitutionality of any parliamentary or provincial bill except in s 79 & 121, ▪ Decide on applications in s 80 or 122, ▪ Decide on the Constitutionality on amendment of Constitution, ▪ Make a ruling that Parliament or the President has failed to fulfill a constitutional obligation, ▪ Certify a provincial obligation. The Constitutional Court makes the final decision of constitutionality regarding Acts of Parliament, Provincial Act or conduct of the president and confirms any order of invalidity. Direct application to Constitutional Court is permitted/ A Constitutional matter is any matter involving the interpretation, enforcement and protection of constitution. ❖ Section 168(2) and (3) A matter in SCA must be decided by a number of judges in terms of an Act of Parliament. SCA can decide any matter of appeal from any court expect in respect of labor and competition matters. ❖ Section 169(1) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  17 Pass and Prosper The High Court may decide any constitutional matter expect matter cc has agreed to hear directly, court of similar status assigned to an Act of Parliament. ❖ Section 170 A court of lower status than High Court may not enquire on the constitutionality of any legislation or conduct of president. ❖ Section 171 and 172 All courts function in terms of national legislation. Courts must declare laws or conduct inconsistent with the Constitution as invalid and can issue just and equitable orders, including suspending the invalidity. The High Court can rule on constitutional matters, but their orders of invalidity need confirmation by the Constitutional Court. ❖ Inherent Power of South African Courts Constitutional Court, SCA, High Court has inherent power to protect and regulate their own process and develop the common law considering the interest of justice. ❖ Direct Access to the Constitutional Court S 167(6) allows a person to bring matter directly to the Constitutional Court and appeal directly to the Constitutional Court when it is in the interest of justice and with leave of the Constitutional Court. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  18 Pass and Prosper Theme 2 – Appointment of Judges Introduction Overview ❖ In this unit we shall cover: Appointment of a Judge/ Judicial Officer The Term of a Judge/ Judicial Officer Removal of Judges/ Judicial Officer The National Director of Public Prosecutions Important Facts ❖ Some modern day examples include: JSC Recommends Judge Maya as the new Chief Justice Ngcobo J’s term extension was declared unconstitutional Motata J was fined R1.1 million for misconduct due to being drunk, but keeps salary for life. The JSC recommends Hlophe J’s suspension to Rama Key Themes ❖ Section 174 Appointment of judicial officers ❖ Section 175 Appointment of acting judges ❖ Section 176 Terms of office and remuneration ❖ Section 177 Removal of judges ❖ Section 178 Judicial Service Commission ❖ Section 179 South African National Prosecuting Officer ❖ Section 180 National legislation and the administration of justice Section 174 Appointment of Judicial Officers (NB) ❖ S174(1) (NB) Fit and proper and appropriately qualified women or men may be appointed as judicial officers. Only South Africans may be appointed as judges of the Constitutional Court. ❖ S174(2) The Appointment of judicial officers must take into account gender and racial representation ❖ S174(3) (NB) President appoints the Chief Justice and Deputy Chief Justice after consultation with the JSC and NA whilst President of South Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  19 Pass and Prosper Africa appoints the President and Deputy President of the SCA only after consultation with the JSC ❖ S174(4) (NB) Other Constitutional Court judges appointed by President of Republic of after consultation with the Chief Justice and some members of the National Assembly and the procedure is as follows: ▪ (a) JSC must provide the name of a nominee and three extra names and then submit the list to the President. ▪ (b) President may make appointments from the list and provide reasons for non-appointments. ▪ (c) JSC must provide supplemented list within which the President will make appointments from. ❖ S174(5) At least four members of the Constitutional Court must have been judges ❖ S174(6) President appoints judges of all other courts on the advice of the JSC. ❖ S174(7) Other judicial officers must be appointed in terms of an Act of Parliament. ❖ S174(8) Judges must take an oath or affirm that they will uphold and protect the Constitution. ❖ Cape Bar Council v Judicial Service Commission and others Facts ▪ The application concerns the validity of the proceedings and actions of the JSC at its meeting of 12 April 2011 (‘the meeting’) when it convened to interview and select candidates for judicial appointment in respect of three vacancies on the bench of the WCHC. One candidate, Henney J, was recommended by the JSC for appointment and was subsequently appointed by the President of the Republic of South Africa in terms of s 174(6) of the Constitution on that advice of the JSC. No candidates were recommended in respect of the other two vacancies and they thus remained vacant. ▪ When the aforesaid shortlisted candidates were interviewed and their selection decided upon, the President of the Supreme Court of Appeal (‘the SCA’) was not present at the meeting. Nor was the Deputy President of the SCA present at the meeting. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  20 Pass and Prosper ▪ The JSC is enjoined in terms of provisions of s 174 of the Constitution to make recommendations regarding the appointment of Judges to the High Court. That constitutes the exercise of a public power. How that power is exercised, or not exercised, or whether it is appropriately exercised i.e. the control thereof, is always a constitutional matter. It is a principle of the rule of law which requires that the exercise of that public power may not be arbitrary but must be rational. That is the basis upon which public power may be reviewed; in accordance with the principle of legality. Ruling ▪ In exercising, or not exercising a constitutional power, the particular organ of state must be accountable and transparent as required by S195(1)(f) and (g) of the Constitution. ▪ It does so by showing that there is a rational objective basis between the power conferred and its decision. ▪ The composition of the JSC is constitutionally mandated, reflecting a balance between members with legal training and other members appointed by the Government. ▪ Section 178(1) prescribes the composition thereof. Section 175 Appointment of Acting Judges ❖ Section 175 – Appointment of Acting Judges S175(1) – The appointment of the acting Deputy Chief Justice or judge of the Constitutional Court is made by the President. It must be in terms of recommendations by the Cabinet member responsible for the administration of justice and the Chief Justice and appointment of the Deputy Chief Justice must be from ranks of those appointed to the Constitutional Court in terms of Section 174(4). S175(2) – The Cabinet minister responsible for the administration of justice appoints the acting judge to other courts after consulting senior judge of the court on which the acting judge will serve. ❖ Oath or Solemn Affirmation of Judicial Officers – Schedule 2 S6(1) ▪ Provides for the wording of the oath and further provides that this should take place before the Chief Justice. S6(2) ▪ Provides that an appointed person to the office of the Chief Justice who is not already a judge must swear or affirm before the Deputy Chief Justice. S6(3) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  21 Pass and Prosper ▪ Other judicial officers including acting judicial officers other than judges must swear and affirm terms of national legislation. Section 176 Terms of Office and Remuneration ❖ Section 176 – Terms of Office and Remuneration (NB) S176(1) – A Constitutional Court judge holds office for a non- renewable term of 12 years or until the age of 70, whichever comes first unless an Act of Parliament extends the term of office of the Constitutional Court judge. S176(2) – Other judges hold office until discharged in terms of an Act of Parliament. S176(3) – Salaries, allowances and benefits of judges may not be reduced. ▪ This is to avoid fear of decrease in salary when making decisions. ▪ Also to avoid corruption. If judges are paid well they are less likely to take a bribe. ❖ Justice Alliance of South Africa v President of the Republic of South Africa ❖ Freedom Under Law v President of the Republic of South Africa ❖ Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others All three of the above cases are analyzed together. FACTS: ▪ The three applications for direct access arise from a decision by the President of the Republic of South Africa to extend the term of office of the Chief Justice of South Africa for five years. ▪ On 11 April 2011 the President requested the Chief Justice in writing to remain in office for an additional period of five years. ▪ Section 176(1) of the Constitution provides: A Constitutional Court judge holds office for a non- renewable term of 12 years or until the age of 70, whichever comes first unless an Act of Parliament extends the term of office of the Constitutional Court judge. ▪ Section 4 of the Judges Remuneration and Conditions of Employment Act: Provides that a Constitutional Court judge, whose 12- year term of office expires or who reaches the age of 70 years before completing 15 years active service, must continue in office until the completion of 15 years active Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  22 Pass and Prosper service or until that judge attains the age of 75 years, whichever is sooner. ▪ Section 8(a) of the Judges Remuneration and Conditions of Employment Act: A Chief Justice who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1) or (2), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years. Held: ▪ The determination of this case depends on S176(1) of the Constitution and S8(a) of the Judges Remuneration and Conditions of Employment Act. ▪ This is against the background of the constitutional imperatives of: Rule of Law The Separation of Powers Judicial Independence The central issue that arises for determination is whether section 8(a) of the Act is consistent with section 176(1) of the Constitution. ▪ It is declared that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 is inconsistent with the Constitution and invalid. ▪ It is declared that the decision of the President of the Republic of South Africa to request the Chief Justice of South Africa to continue performing active service as Chief Justice in terms of section 8(a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 is inconsistent with the Constitution and invalid and that the consequent extension of the term of office of the Chief Justice is of no force and effect. Section 177 Removal of Judges ❖ S177(1)(a) (NB) Must suffer from incapacity, is grossly incompetent or guilty of gross misconduct (and this finding is made by the JSC). ❖ S177(1)(b) National Assembly calls for the removal on adoption of a resolution calling for the judge to be removed. ❖ S177(2) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  23 Pass and Prosper President must remove a judge from office upon adoption of a resolution calling for that judge to be removed. ❖ S177(3) The President on advice of the JSC may suspend a judge who is subject of a procedure in terms of sub section (1). Case Law ❖ Hlophe v Judicial Service Commission and Others Facts ▪ This is a review application brought by Hlophe JP to set aside the decision of the Judicial Service Commission (JSC), taken on 25 August 2021, in which it resolved, by a majority of 8-4, that he had committed gross misconduct. The consequence of such a decision is that Hlophe JP must be referred to Parliament to be subjected to a motion to impeach him. Relevant Law ▪ Section 177(1)(a) (NB) A judge may be removed from office only if –  The Judicial Service Commission finds that the judge suffers from an: Incapacity Is grossly incompetent or Is guilty of gross misconduct. Held ▪ The structure of Section 177(1)(a) plainly provides that a judge can be removed if the JSC finds that the judge is guilty of gross misconduct. ▪ That finding is a jurisdictional precondition to the National Assembly contemplating a resolution to remove a judge. ▪ The decision as to whether the misconduct occurred is that of the JSC alone (NB). ▪ Section 177(1)(b) provides that when the National Assembly resolves to remove a judge it must be with a supporting vote of at least two thirds of its members. ▪ In terms of section 177(2), the President of the Republic must then remove the judge from office upon the adoption of such a resolution. ▪ There is no provision in section 177 for a re-hearing of the complaint by the National Assembly. ❖ Motata v Minister of Justice and Constitutional Development Relevant Law ▪ Section 177(1)(a) A judge may be removed from office only if –  The Judicial Service Commission finds that the judge suffers from an: Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  24 Pass and Prosper Incapacity Is grossly incompetent or Is guilty of gross misconduct. ▪ Section 177(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed. ▪ Section 177(3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1). Section 178 Judicial Service Commission – Plays a Role in Appointments and Removals (NB) ❖ Section 178(1) Provides for the composition of the JSC: ▪ Chief Justice (presiding officer) ▪ One Judge President ▪ Cabinet Member responsible for administration of justice ▪ Two Practicing Advocates ▪ Two Practicing Attorneys ▪ One Teacher of Law ▪ Six Persons designated by the National Assembly ▪ Four Permanent Delegates of the NCOP ▪ Four persons designated by the President ▪ With regard to matters concerning a specific high court (NB): The Judge President of the Court Premier of the Province ❖ Section 178(2) Composition of members of the attorney professions and vacancies to be filled. Provides for when the President must appoint without consultation with relevant members of the profession. ❖ Section 178(3) Provides for the duration within which members designated by the NCOP may serve. They serve until they are replaced or until a vacancy occurs. ❖ Section 178(4) JSC exercises powers and functions in terms of the Constitution and national legislation. ❖ Section 178(5) The JSC may advise national government on matters related to administration of justice and the judiciary must sit without Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  25 Pass and Prosper members of the NA and NCOP with regard to matters not dealing with the appointment of judges. ❖ Section 178(6) The JSC may provide for its own procedure but its decisions must be supported by a majority of its members. ❖ Section 178(7) The Deputy Chief Justice and the Deputy President of the SCA serve on behalf of the Chief Justice and the President of the SCA in their absence on the Commission. ❖ 178(8) All the members who are temporarily unable to serve may be represented by persons appointed by the President and the persons who appoint, nominate or designate the members of the commission. Section 179 South African National Prosecuting Authority ❖ The Constitution gives the prosecuting authority the power to institute criminal proceedings on behalf of the State and others to attend to other incidental matters related to the institution of criminal proceedings. ❖ The Minister of Justice exercises the final responsibility over this branch. ❖ Must exercise its functions without fear and favor or prejudice. ❖ Decisions taken by the NPA to prosecute or not to prosecute should be taken without political interference. The Section Analyzed ❖ Section 179(1) Provides for the establishment of the NPA The NPA consists of (NB): ▪ (a) National Director of Public Prosecutions (Head of the NPA) who is appointed by the President. ▪ (b) Other Directors of Public Prosecutions The NPA structure consists of: ▪ The National Prosecuting Services ▪ Directorate: Special Operations ▪ Witness Protection Programme ▪ Asset Forfeiture Unit ▪ Sexual Offences and Community Affairs ▪ Specialized Commercial Unit ▪ Priority Crimes Litigation Unit ▪ Integrity Management Unit ❖ Section 179(2) The prosecuting authority has the power to institute criminal proceedings ❖ Section 179(3) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  26 Pass and Prosper National legislation must ensure that the DPP’s are: ▪ Appropriately qualified. ▪ Responsible for prosecutions in specific jurisdictions. ❖ Section 179(4) National legislation must ensure that they prosecuting authority exercises its functions without fear, favor or prejudice. ❖ Section 179(5) (NB – Know functions) (a) NDPP must determine what must be observed in the prosecution process. This should be done with the concurrence of the Cabinet member responsible for the administration of justice. (b) Issue policy directives which must be observed in the prosecution process. (c) May intervene in the prosecution process when policy directives are not complied with. (d) May review a decision to prosecute or not to prosecute after consulting relevant DPP and after taking representations from the accused, the complainant and any other relevant person. ❖ Section 179(6) The cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority. ❖ Section 179(7) All other matters must be determined by national legislation. Powers of the NDPP and DPP (NB) ❖ Institute and conduct criminal proceedings on behalf of the State. ❖ Carry out any necessary functions incidental to instituting and conducting criminal proceedings. ❖ Discontinue criminal proceedings. Case Law ❖ National Director of Public Prosecutions v Zuma (NB) Para 37 ▪ The prosecution policy requires from prosecutors when deciding whether or not to institute criminal proceedings against an accused to assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. ▪ There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced with or continued. Section 180 Matters concerning Administration of Justice Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  27 Pass and Prosper ❖ Section 180(1) National legislation must provide for: ▪ (a) The training of judges. ▪ (b) Procedures for dealing with complaints. ▪ (c) Participation of other people except for judicial officers in court decisions. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  28 Pass and Prosper Theme 3 – Chapter 9 Institutions (Not In Scope According to Announcement) Constitutional Overview Democracy ❖ Constitutional Democracy – What does it entail? New Clicks Case ▪ Not in slides. ▪ Chaskalson CJ specified that South African Constitutional Democracy is inherently participatory, in that the public is actively and routinely involved in the decision making process and the adoption of new legislation in the legal system. The Democratic State is founded on various values. Constitutional Framework ▪ Establishes institutions to uphold democratic values ▪ Supports a system of Constitutional Democracy ▪ Promotes open government practices Section 181 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. The Various Institutions ❖ Commission for the Promotion and Protection of the Rights of the Cultural, Religious and Linguistic Communities ❖ South African Human Rights Commission ❖ The Commission for Gender Equality ❖ Public Protector ❖ The Auditor General ❖ The Electoral Commission Section 182 The Public Protector ❖ Section 182(1) (a) – investigate any alleged improper conduct in public administration (b) – report on the above conduct Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  29 Pass and Prosper (c) – take appropriate remedial action ❖ Section 182(2) Perform functions and powers in terms of national legislation. ❖ Section 182(3) The public protector may not investigate court decisions. ❖ Section 182(4) Must be accessible to all persons and communities. ❖ Section 182(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. Functions of Public Protector ❖ 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 of the Public Protector (NB) ❖ Non-renewable term. ❖ 7 years. Section 184 Overview ❖ Reports of the Public Protector June 2024 – Report into gender-based violence and the responsiveness of the criminal justice system to the scourge. ▪ Was in response to the murder of a woman and her child. ▪ This was after she had approached the Belville Magistrate’s Court to apply for domestic violence protection against her ex-boyfriend. ▪ She was allegedly turned away by court officials. ▪ The ability of the justice system to serve and support women who come to seek justice services or assistance from the courts is an absolute priority. 1st Quarter 2024 ▪ Alleged irregular appointment of Opulentia by the Emfuleni Local Municipality ▪ Alleged irregular appointment of C-Squared Consumer Connectedness (Pty) Ltd and the resultant excessive expenditure incurred for the events leading up to and the funerals of Messrs Makgoe and Mdi Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  30 Pass and Prosper ▪ Alleged improper conduct by functionaries of the Gauteng Department of Infrastructure Development and the Gauteng Education department in connection with the construction of Mayibuye Primary School. ▪ Investigation into allegations of contravention of Transnet SOC Ltd’s policies in relation to a payment of R350 ‘000.00 made to the Popo Molefe Foundation while he was chairperson of Transnet. The Section ❖ Section 184(1) Duties of the SAHRC ▪ Promote respect for human rights and a human rights culture thereof. ▪ Promote the protection of human rights. ▪ Monitor and assess observance of human rights. ❖ Section 184(2) Powers of the SAHRC ▪ Investigate and report observance of human rights ▪ Take steps to secure appropriate redress where human rights have been violated ▪ Carry out research ▪ To Educate ❖ Section 184(3) Requires relevant organs to update the commission with recommendations towards the realization of socio-economic rights. ❖ Section 184(4) Additional powers prescribed by national legislation. Free State Schools April 2024 (Example) ❖ The SAHRC which identified issues that infringed on Free State pupils’ rights to education and safety, including dilapidated buildings at risk of collapse, met with the province’s education department this week to discuss progress on corrective measures. ❖ The commission, led by provisional commissioner Henk Boshoff, first visited some schools in all five education districts in the province in January as part of a priect to assess the readiness of the education department for the start of the 2024 year and found prevalences of infrastructure, sanitation, overcrowding and safety problems. ❖ The schools visited by the commission include Botlehadi Primary School, Bloemfontein Primary School, Ruang Tsebo Primary Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  31 Pass and Prosper School, Mariasdal Combined School and Tshomarelo Primary School. Section 185 The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) ❖ Section 185(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 the community. ❖ Section 185(2) Power to investigate and report on issues concerning rights of cultural, religious and linguistics communities. ❖ Section 185(3) Commission may report any matter which falls within its powers and functions to the South African Human Rights Commission for investigation. ❖ Section 185(4) The commission has the additional powers and functions prescribed by national legislation. Section 186 CRL Composition (NB) ❖ Section 186 – CRL Composition Section 186(1) ▪ Number of members of the Commission and term must be prescribed by national legislation. Section 186(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 Example ❖ Urgent Media Invite to the Launch of the CRL rights report in respect of the injuries suffered by about 292 young men at an initiation school in Pahalrorwa In 2022, when the initiation season was about to start, a complaint was laid with the CRL. It was reported that some initiates in the Mopani District had been taken to Maphutha Malatjie Hospital due to complications from a initiation related circumcision. Upon further investigation, it was found that about 292 initiates had been admitted to hospitals in Limpopo due to the Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  32 Pass and Prosper complications of circumcision surgery. As a result, the devasted parents of the initiates requested the intervention of the Commission on this matter. The Commission in terms of section 185 of the Constitution and empowered by the CRL Rights Act 19 of 2002 had a report back session outlining possible remedial steps to deal with these challenges. The session was attended by parents of the young men, government departments such as GOGTA, SAPS, HEALTH, Provincial House of Traditional Leaders, Municipality and other stakeholders. Section 187 The Commission for Gender Equality ❖ Section 187(1) Must promote