Constitutional Law Practice

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Constitutional Law Practice 2022 F
Civil Procedure (University of South Africa)
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CONSTITUTIONAL
LAW PRACTICE
Syllabus
The syllabus is compiled by

Practitioners with experience in
practice.
The author of the guide is
Training Guide Advocate Nicholas J. Tee who

had assistance from Advocate
Version 002 Learning Resources No 028
Publish Date: 01/01/2022 Ismail Hussain SC.
Confirmation Date: 26/11/2022
____________
This training guide is intended as a supplementary tool for
Notes on Content
purpose of the training at L.E.A.D’s Practical Vocational
Training School and Courses. The document records the
views of the drafters. There
The publishing of this training guide (“guide”) was made may be justifiable variations in
possible through financial support of the Legal Practice practice.
Council (via the legal Practitioners’ Fidelity Fund).
____________
The Law Society of South Africa brings together the Black The content may not be a
Lawyers Association, the National Association of Democratic correct reflection of the law
Lawyers and the provincial attorneys’ associations in and/or practice at the moment
representing the attorneys’ profession in South Africa. of reading due to legislative
changes after printing.
Lifelong learning towards a just society

CONSTITUTIONAL LAW PRACTICE ©LSSA

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© Law Society of South Africa

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damage suffered by any person as a result of the reliance upon the information contained
therein.
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TABLE OF CONTENTS
INTENDED OUTCOMES 1
SELECT LIST OF CASES IN FULL AVAILABLE CITATION 2
INTRODUCTION, PURPOSE AND CONTENTS 9
GENERAL ADVICE ABOUT THE CONSTITUTION 10
IMPORTANT TECHNICALITIES ABOUT THE CONSTITUTION 11
DRAMATIC CHANGE TO THE JURISDICTION OF THE CONSTITUTIONAL

COURT 11
THE SUPERIOR COURTS ACT MAKES LAWYERS MUCH MORE APPEALING 12
PRESIDENT OR STATE PRESIDENT 14
SUMMARY OF THE TECHNICAL ISSUES ABOUT THE CONSTITUTION 15

Table: Basic overview of the Constitution of the Republic of South Africa, 1996 16
Table: Stylised overview of the Chapters in the Constitution, 1996 17
LANGUAGE AND LEARNING 18

1. The English language 18
2. Why do we need to read and learn? 20
LET US BEGIN WITH THE BASIC CONCEPTS 21

A. What is a Constitution? 21
B. What is a democracy? 23
C. The separation of powers 25
NOW FOR MORE TECHNICAL (TRICKY) CONCEPTS 29

D. Accountability, responsibility and transparency 29
E. Constitutional issue – constitutionalism – constitutionality 31
F. Jurisdiction 34
G. Justiciable and justiciability 43
H. Interpretation 46
I. The rule of law and the principle of legality 49
J. Administrative actions, decisions and PAJA 53

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K. Rationality and reasonableness 55

L. Remedies and the limitations analysis 56
M. Other assorted gremlins 72
BASIC TEMPLATE FOR CONSTITUTIONAL LAW LITIGATION 72

Profound changes in our constitutional law 72
The Court Cycle and the Facts 74
Your client has engaged your services to solve a problem. 75
TAKING INSTRUCTIONS WITH A VIEW TO CONSTITUTIONAL LAW

LITIGATION 77
A. STEP ONE: what are the FACTS? 77
B STEP TWO: what is the CONSTITUTIONAL ISSUE? 78
C. STEP THREE: what is the potential REMEDY? 79
D. STEP FOUR: going to COURT 80
CASE STUDIES FOR THE CONSCIENTIOUS CANDIDATE LEGAL

PRACTITIONER 84
BIBLIOGRAPHY 89
TABLE OF NATIONAL LEGISLATION ENACTED IN TERMS OF THE

CONSTITUTION 92

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INTENDED OUTCOMES
FROM READING, STUDYING AND CONSIDERING THE COURSE MATERIAL
The readers
Candidate legal practitioners are the readers of this training guide. They are under
stress to learn and integrate themselves into the daunting profession of law. Little in
their academic training has given them a path to understanding the complexities and
nuances of the legal profession.
The training guide requires five basic outcomes.

First, the reader must grasp the technicalities of the Constitution. These comprise the
key dates and key changes of approach to constitutional law from 1994 until today.
Second, the reader must have a basic grasp of the technical legal words (jargon) of
the profession.
Third, the reader must have a grasp of the basic principles of constitutional law
practice.
Fourth, the reader must have a grasp of the basic references to sources of
constitutional law. So, the reader must be able to find the references in the footnotes
either on SAFLII, Jutastat, LexisNexis or the law reports in book form.
Finally, the reader must be able to assess the facts of the case which the reader is
dealing with, and then be able to identify the constitutional rule, issue, principle or
constitutional case applicable to the facts of their matter.
The Table of Legislation juxtaposed (set out side-by-side) with the Constitution
at the end of the guide is a useful reference tool for practitioners who need to
give advice to their clients on constitutional matters.
However, the legal practitioner will have to keep the Table up to date. Our legislation
changes quickly. So, the practitioner must act fast.
The cases referred to in the guide are set out below. The reason is to list all their
known citations. Generally, the guide uses citations from Jutastat. The only reason
Jutastat is preferred in the guide is to save page space. At times the case names are
redacted also to save space by removing ‘and Others/Another’ and the use of well-
known acronyms like SARS for the South African Revenue Service. Printing a 120-
page guide costs money and paper. Both can be conveniently saved by using one
reference system in the guide, backed up by the cross-referencing below.
CONSTITUTIONAL LAW PRACTICE ©LSSA 1

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SELECT LIST OF CASES IN FULL AVAILABLE CITATION

AB and Another v Pridwin Preparatory School and Others 2020 (5) SA 327 (CC) [2020] ZACC
12; 2020 (9) BCLR 1029 (CC)
A M v H M [2020] ZACC 9; 2020 (8) BCLR 903 (CC)
Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC)
(2005 (6) BCLR 529; [2005] ZACC 3)
Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC) (2013 (7) BCLR 727; [2013] ZACC 9)
Airports Company South Africa v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ)
Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) (2010 (5)
BCLR 391; [2010] ZACC 4)
Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South
African Social Security Agency 2014 (1) SA 604 (CC) (2014 (1) BCLR 1; [2013] ZACC 42)
Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South
African Social Security Agency 2014 (4) SA 179 (CC) (2014 (6) BCLR 641; [2014] ZACC 12
Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and
Correctional Services and Others 2021 (3) SA 246 (CC)
Bafokeng Land Buyers Association v Royal Bafokeng Nation 2018 (5) SA 566 (NWM)
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004
(4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15)
Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) (2020
(9) BCLR 1098; [2020] ZACC 13)
Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011
(4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26)
Bernstein v Bester & Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2)
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as
Amicus Curiae); Shibi v Sithole; SAHRC v President of the Republic of South Africa and Another
2005 (1) SA 580 (CC) (2005 (1) BCLR 1; [2004] ZACC 17)
Big G Restaurants (Pty) Limited v Commissioner for SARS 2020 (6) SA 1 (CC) [2020] ZACC 16
Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10)
BCLR 1014; [2009] ZACC 14)
Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC
Intervening) 2017 (3) SA 335 (CC) (2007 (5) BCLR 543; [2017] ZACC 8)
S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC)

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Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC)
Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC)
Buffalo City v Metgovis [2019] ZACC 9
Burchell v Burchell [2005] ZAECHC 35 (ECD 364/2005)
Calibre Clinical Consultants (Pty) Ltd v National Bargaining Council for the Road Freight
Industry 2010 (5) SA 457 (SCA)
Camps Bay Residents and Ratepayers Association v Augoustides 2009 (6) SA 190 (WCC)
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22)
CTC v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) (2017 (6) BCLR 730; [2017] ZACC 5)
City of Cape Town v Robertson and Another 2005 (2) SA 323 (CC) (2005 (3) BCLR 199)
City of Jhb Metropolitan Municipality v Blue Moonlight Prop 39 (Pty) Ltd 2011 (4) SA 337 (SCA)
Cloete v S and A Similar Application 2019 (4) SA 268 (CC)
Competition Commission v Hosken Consolidated Investments Ltd 2019 (3) SA 1 (CC) (2019
(4) BCLR 470; [2019] ZACC 2)
Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC):
[2020] ZACC 14
Corruption Watch NPC v President of the Republic of South Africa; Nxasana v Corruption Watch
NPC 2018 (2) SACR 442 (CC) (2018 (10) BCLR 1179; [2018] ZACC 23)
DE v RH 2015 (5) SA 83 (CC) (2015 (9) BCLR 1003; [2015] ZACC 18)
De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779; [1998] ZACC 6)
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division [2003] ZACC 19;
2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC)
Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248
(CC) (2012 (12) BCLR 1297; [2012] ZACC 24)
Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA
199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12)
Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1; [2006] ZACC 10)
Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416
(CC) (2006 (12) BCLR 1399; [2006] ZACC 11)
EFF v Gordhan & Others 2020 (6) SA 325 (CC): 2020 (8) BCLR 916 (CC): [2020] ZACC 10

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EFF v Speaker National Assembly 2016 (3) SA 580 (CC) (2016 (5) BCLR 618; [2016] ZACC 11)
Electrical Contractors’ Association (South Africa) and Another v Building Industries Federation
(South Africa) (2) 1980 (2) SA 516 (T)
Esau v Minister of Co-Operative Governance and Traditional Affairs 2021 (3) SA 593 (SCA);
[2021] ZASCA 9; [2021] 2 All SA 357 (SCA)
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the

Republic of South Africa, 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26)
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of

the Constitution of the RSA, 1996 1997 (2) SA 97 (CC) (1997 (1) BCLR 1; [1996] ZACC 24)
Ex parte Institute for Security Studies: In re S v Basson 2006 (6) SA 195 (CC)(2006 (2) SACR
350;[2005] ZACC 4)
Federation of Governing Bodies for SA Schools v MEC for Education, Gauteng 2016 (4) SA 546
(CC) (2016 (8) BCLR 1050)
Fose v Min of Safety & Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6)
Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA)
Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3)
SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24)
Gavric v Refugee Status Determination Officer 2019 (1) SA 21 (CC) (2019 (1) BCLR 1; [2018]
ZACC 38)
Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) (2010 (1) BCLR 35;
[2009] 12 BLLR 1145; [2009] ZACC 26)
Gelyke Kanse v Chairperson, Senate of the University of Stellenbosch 2020 (1) SA 368 (CC)
(2019 (12) BCLR 1479; [2019] ZACC 38)
General Council of the Bar of South Africa v Jiba 2019 (8) BCLR 919 (CC) ([2019] ZACC 23)
Gihwala v Grancy Property Ltd 2017 (2) SA 337 (SCA) ([2016] 2 All SA 649; [2016] ZASCA 35)
Glenister v President of the RSA 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6)
Head of Department; Mpumalanga Department of Education v Hoërskool Ermelo 2010 (2) SA

415 (CC); 2010 (3) BCLR 177 (CC); [2009] ZACC 32
Hoffmann v South African Airways 2001 (1) SA 1 (CC) (2000 (11) BCLR 1211; (2000) 21 ILJ
2357; [2000] 12 BLLR 1365; [2000] ZACC 17)
Hotz v UCT 2018 (1) SA 369 (CC) (2017 (7) BCLR 815; [2017] ZACC 10)
Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9)
BCLR 883; [2001] ZACC 23)

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Janse van Rensburg NO v Minister of Trade and Industry 2001 (1) SA 29 (CC) (2000 (11)
BCLR 1235; [2000] ZACC 18)
Johncom Media Investment Ltd v M 2009 (4) SA 7 (CC) (2009 (8) BCLR 751; [2009] ZACC 5)
Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC)
(2017 (11) BCLR 1370; [2017] ZACC 31)
JT Publishing (Pty) Ltd and Another v Minister of Safety and Security1997 (3) SA 514 (CC)
(1996 (12) BCLR 1599; [1996] ZACC 23)
Kaknis v ABSA Bank Ltd 2017 (4) SA 17 (SCA) ([2017] 2 All SA 1)
Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as
Amicus Curiae) 2010 (4) SA 327 (CC) (2009 (12) BCLR 1192; [2009] ZACC 23)
Law Society of South Africa v President of the Republic of South Africa 2019 (3) SA 30 (CC)
Lawyers For Human Rights v Minister of Home Affairs and Others 2017 (5) SA 480 (CC)
Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) (2009
(6) BCLR 527; [2009] ZACC 6)
Maccsand (Pty) Ltd v City of Cape Town and Others 2012 (4) SA 181 (CC) (2012 (7) BCLR
690; [2012] ZACC 7)
Makanyi v AngloGold Ashanti Ltd 2011 (3) SA 237 (CC) (2011 (5) BCLR 453; [2011] ZACC 3)
Maledu v Itereleng Bakgatla Mineral Resources (Pty) Ltd 2019 (2) SA 1 (CC) (2019 (1) BCLR 53;
[2018] ZACC 41)
Matjhabeng Local Muni v Eskom Holdings Ltd 2018 (1) SA 1 (CC) ([2017] ZACC 35)
Mazibuko NO v Sisulu NNO 2013 (6) SA 249 (CC) (2013 (11) BCLR 1297; [2013] ZACC 28)
Meadow Glen Home Owners Association v Tshwane City Metro Municipality 2015 (2) SA 413
(SCA) ([2014] ZASCA 209)
MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) ([2006] 2 All SA 455)
MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) (2008 (2) BCLR
99; [2007] ZACC 21)
MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer
Institute 2014 (3) SA 481 (CC) (2014 (5) BCLR 547; [2014] ZACC 6)
MEC for Health & Social Dev, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (2017 (12) BCLR
1528; [2017] ZACC 37)
Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016 (1) SA
621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34)

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Minister of Health and Others v Treatment Action Campaign and Others: In re Certain Amicus
Curiae Applications 2002 (5) SA 713 (CC) (2002 (10) BCLR 1023; [2002] ZACC 13)
Minister of Health NO v New Clicks SA (Pty) Ltd (TAC Amici Curiae) 2006 (2) SA 311 (CC)
(2006 (1) BCLR 1; [2005] ZACC 14)
Minister of Justice and Constitutional Development v Prince and Others 2018 (6) SA 393 (CC)
Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC)
(1998 (7) BCLR 880; [1998] ZACC 10)
Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bisset and Others v
Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local
Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi
Municipality as Amici Curiae) 2005 (1) SA 530 (CC) (2005 (2) BCLR 150; [2004] ZACC 9)
MM v MN 2013 (4) SA 415 (CC) (2013 (8) BCLR 918; [2013] ZACC 14)
Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA
and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and
Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae)
2004 (6) SA 40 (SCA) (2004 (8) BCLR 821; [2004] 3 All SA 169)
MVF Limb: Sheriff for the Magisterial District of the Cape v South Sea Driller, Her Owner and
all Other Parties Interested in Her 1999 (4) SA 221 (C)
My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC) (2015 (12)
BCLR 1407; [2015] ZACC 31)
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2
All SA 262; [2012] ZASCA 13)
National Coalition for Gay & Lesbian Equality v Minister of Home Affairs 1999 (3) SA 173 (C)
(1999 (3) BCLR 280)
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) (1998
(2) SACR 556; 1998 (12) BCLR 1517; [1998] ZACC 15)
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; B [1999] ZACC 17)
National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA
223 (CC) (2012 (11) BCLR 1148; [2012] ZACC 18)
National Union of Metalworkers of South Africa v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC)
((2003) 24 ILJ 305; 2003 (2) BCLR 182; [2003] 2 BLLR 103; [2002] ZACC 30)
NCR v Opperman 2013 (2) SA 1 (CC) (2013 (2) BCLR 170; [2012] ZACC 29)
New National Party of SA v Government of the Republic of SA 1999 (3) SA 191 (CC) (1999 (5)
BCLR 489; [1999] ZACC 5)

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Ngqukumba v Minister of Safety and Security and Others 2014 (5) SA 112 (CC) (2014 (7)
BCLR 788; [2014] ZACC 14)
Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) (2015 (5)
BCLR 509; [2015] ZACC 5)
Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of

South Africa 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1)
POPCRU v SACOSWU 2019 (1) SA 73 (CC)
President of the RSA v Hugo 1997 (4) SA 1 (CC) (1997 (1) SACR 567; 1997 (6) BCLR 708;
[1997] ZACC 4)
President of the RSA v Modderklip Boerdery (Pty) Ltd (Agri SA, Amici Curiae) 2005 (5) SA 3
(CC) (2005 (8) BCLR 786; [2005] ZACC 5)
Pretorius v Transport Pension Fund 2019 (2) SA 37 (CC)
Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001 (1) SACR 217;
2001 (2) BCLR 133; [2000] ZACC 28)
Public Servants Association obo Ubogu v Head, Dept of Health, Gauteng 2018 (2) SA 365 (CC)
RAF v Mdeyide (Minister of Transport Intervening) 2008 (1) SA 535 (CC) (2007 (7) BCLR 805;
[2007] ZACC 7)
Ramuhovhi v President of the RSA 2018 (2) SA 1 (CC) (2018 (2) BCLR 217; [2017] ZACC 41)
Recycling and Economic Development Initiative of South Africa NPC v Minister of

Environmental Affairs 2019 (3) SA 251 (SCA)
Road Traffic Management Corp. v Tasima (Pty) Ltd 2021 (1) SA 589 (CC) [2020] ZACC 21
Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC)
SATAWU v Garvas [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC)
S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1579;
[1996] 1 All SA 11; [1995] ZACC 11)
S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36; [2000] ZACC 25)
S v Liesching 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41)
S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665;
[1995] ZACC 3)
S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC) (2015 (8) BCLR 887; [2015] ZACC 19)
S v Mhlungu 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4)

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SA Veterinary Association v Speaker of The National Assembly 2019 (3) SA 62 (CC)
Saharawi Arab Democratic Republic v Owners & Charterers of The Cherry Blossom 2017 (5) SA
105 ECP
Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) (1998 (1) SACR 227; 1997
(12) BCLR 1675)
Sebola v Standard Bank of South Africa Ltd [2012] ZACC 11; 2012 (5) SA 142 (CC); 2012 (8)
BCLR 785 (CC)
Spilhaus Property Holdings (Pty) Ltd v MTN (Pty) Ltd 2019 (4) SA 406 (CC)
State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC)
(2018 (2) BCLR 240; [2017] ZACC 40)
Swart v Starbuck 2017 (5) SA 370 (CC)
Telkom SA SOC Limited v City of Cape Town and Another (CCT287/19) [2020] ZACC 15; 2020
(10) BCLR 1283 (CC); 2021 (1) SA 1 (CC) (25 June 2020)
Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) Ltd and Others 2019 (7)
BCLR 850 (CC) ([2019] ZACC 14)
Tjiroze v Appeal Board of the Financial Services Board [2020] ZACC 18
Tlouamma v Speaker, National Assembly 2016 (1) SA 534 (WCC)
Tronox KZN Sands (Pty) Ltd v KZN Planning & Dev Appeal Tribunal 2016 (3) SA 160 (CC)
(2016 (4) BCLR 469; [2016] ZACC 2)
United Democratic Movement v Speaker, National Assembly and Others 2017 (5) SA 300 (CC)
(2017 (8) BCLR 1061; [2017] ZACC 21)
University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional
Services 2016 (6) SA 596 (CC) (2016 (12) BCLR 1535; (2016) 37 ILJ 2730; [2016] ZACC 32)
Van der Spuy v GCB of SA (Minister of Justice & Constitutional Development, AFT & LSSA
Intervening) 2002 (5) SA 392 (CC) (2002 (10) BCLR 1092; [2002] ZACC 17)
Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) (2002 (5) BCLR 454; [2002] ZACC 4)
Van der Walt v S [2020] ZACC 19
Van Rooyen v The State (General Council of the Bar of SA Intervening) 2002 (5) SA 246 (CC)
(2002 (2) SACR 222; 2002 (8) BCLR 810; [2002] ZACC 8)
Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA
472 (CC) (2008 (4) BCLR 442)
Veldman v DPP, WLD 2007 (3) SA 210 (CC) (2006 (2) SACR 319; 2007 (9) BCLR 929; [2005]
ZACC 22)

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Constitutional Law Practice
A Practical Training Guide for Candidate Legal Practitioners
INTRODUCTION, PURPOSE AND CONTENTS
INTRODUCTION
The Constitution of the Republic of South Africa, 1996 is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by
it must be fulfilled. 1
When the Constitution was adopted by the Constitutional Assembly in 1996, it was
referred to by an Act number: “Act 108 of 1996”. However, the Citation of
Constitutional Laws Act 5 of 2005 changed the name of the Constitution to the
‘Constitution of the Republic of South Africa, 1996’. The rationale for the change is set
out in the preamble to the Citation Act. 2 For brevity, the Constitution is referred to in
this guide as the “Constitution” or the “Constitution, 1996”.
PURPOSE OF THE GUIDE

The purpose of this guide is to equip the reader with a grasp of a practical application
of the Constitution in everyday legal practice. You will be required to advise clients
about the Constitution in two distinct but related areas. The first concerns general
legal advice – whether about the conduct of your client’s business affairs or family or
other legal matters. The second concerns advice specifically about constitutional law
litigation.
As you will appreciate, constitutional litigation is more focused than general advice
about the Constitution. Moreover, in practice and certainly in perception, people seem
to assume that constitutional law litigation revolves around the Bill of Rights in
1 Chapter 1 Founding Provisions, s 2 of the Constitution, 1996.

2 “Preamble
WHEREAS s 2 of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), provides that
the Constitution is the supreme law of the Republic of South Africa;
AND WHEREAS the Constitution, unlike other Acts of the Republic of South Africa, was not passed
by Parliament, but was adopted by the Constitutional Assembly;
AND RECOGNISING that the Constitution and amendments to the Constitution should be treated
differently from other Acts of Parliament by not being allocated an Act number like other ordinary Acts of
Parliament, …”.
The Citation Act commenced on 27 June 2005. At that time there had already been eleven amendments
to the Constitution, all cited as Amendment Acts of Parliament. Nowadays, all amendments to the
Constitution are cited by their ordinal numbers, for example, the most recent being the “Constitutional
Seventeenth Amendment Act of 2012”.

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Chapter 2 only. Indeed, in the ‘The Bill of Rights Handbook’, the authors 3 state that
their book ‘deals with the principal source of substantive constraints on public power
in the Constitution: the Bill of Rights.’
While vital litigation indeed does invoke the rights in the Bill of Rights, about one
third of constitutional litigation is spawned from the other thirteen Chapters
of the Constitution and its Schedules. In this regard, consider briefly the table on
a Basic Overview of the Chapters in the Constitution. There are fourteen Chapters, a
Preamble and several Schedules to the Constitution. In fact, the Constitution affects
every aspect of the conduct of affairs in an open and democratic society.
CONTENTS OF THIS GUIDE

The Guide provides a method to give general advice about the Constitution.
This advice assumes the existence of some constitutional issue. However, your client
is not seeking to litigate. To assist you in giving such advice, see the table annexed to
the end of the guide which sets out the sections in the Constitution that require
national legislation next to the Acts of Parliament duly enacted.
The guide also deals with the practical process of constitutional litigation. It
considers:
(a) how best to take instructions from your client;

(b) how to assess whether a constitutional matter is at issue;
(c) how to apply the limitations analysis for Chapter 2 matters;
(d) how to formulate a remedy whether concerning Chapter 2 or other Chapters of
the Constitution; and,
(e) how to apply the relevant Rules and Directives to seek that remedy.
This will assist you to contextualise the case as a constitutional matter. The idea is to
establish a basic template which you may amend, improve and rely on as a busy legal
practitioner.
Finally, the guide is not an academic treatise on constitutional law. There are
many splendid books that deal with the Constitutional Law of South Africa. Some of
those books are cited in the Bibliography.
GENERAL ADVICE ABOUT THE CONSTITUTION
An approach to giving advice

Before you give advice on any matter of the law, it is useful to know something about
that law! So, what do you know about the Constitution and constitutional law in
general? Frankly, you already know more about the law than you realise. 4
3 Iain Currie and Johan de Waal, The Bill of Rights Handbook Sixth Edition: Chapter Two – Structure of
Bill of Rights Litigation at page 23. The book is magnificent. I urge you to get a copy.

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Consider the following basic technicalities of the Constitution. You will be astonished
at how often these technicalities are neglected.
IMPORTANT TECHNICALITIES ABOUT THE CONSTITUTION
The Constitution of the Republic of South Africa, 1996 commenced on 4 February 1997.
At that time, s 167(1) provided that: “The Constitutional Court consists of a

President, a Deputy President and nine other judges.”
And s 168(1) provided that: “The Supreme Court of Appeal consists of a Chief
Justice, a Deputy Chief Justice and the number of judges of appeal determined
by an Act of Parliament.”
You may recall that the late Arthur Chaskalson was President of the Constitutional
Court from 1994 until 20 November 2001. However, on 21 November 2001 the title
of President of the Constitutional Court was changed to that of Chief Justice and the
title President was transferred to the Supreme Court of Appeal. 5
So, when you read Constitutional Court law reports from SAFLII 6 or Juta or LexisNexis,
remember that the change from ‘Chaskalson P’ to ‘Chaskalson CJ’ occurs towards the end
of November 2001 and certainly can be seen in law reports from early 2002.
Also remember, on 27 June 2005 the Citation of Constitutional Laws Act 5 of 2005
commenced, as noted above. Now, let us consider a dramatic change in our
constitutional law.
DRAMATIC CHANGE TO THE JURISDICTION OF THE CONSTITUTIONAL

COURT
On Friday, 23 August 2013 both the Constitution Seventeenth Amendment Act of
2012 and the Superior Courts Act 10 of 2013 commenced. Concerning the
Constitutional Court, Madlanga J described the dramatic change as follows: 7
4 The first part of the Guide will give you a framework to remember what you already know. And,
then as you learn more, you can update and upgrade the framework.
5 Constitution Sixth Amendment Act of 2001 (previously the ‘Constitution of the RSA Amendment Act 34
of 2001’). Remember, President Nelson Mandela had opened the Constitutional Court on 14 February
1995. Its first sitting was on 15 February 1995 in the matter of S v Makwanyane and Another 1995 (3)
SA 391 (CC), the death penalty case.
6 The Southern African Legal Information Institute.

7 Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) at para [13] per
Madlanga J (Jafta J and Nkabinde J concurring). Moseneke DCJ, Mogoeng CJ, Khampepe J, Leeuw AJ and
Van der Westhuizen J concurred with para [13] in para [104].

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“The court’s jurisdiction is governed by s 167(3) to (7) of the Constitution.

Whereas previously s 167(3) conferred jurisdiction on the court to ‘decide
only constitutional matters and issues connected with decisions on
constitutional matters’, the section has been amended by the Constitution
Seventeenth Amendment Act to make the Constitutional Court the highest court
in all matters. The amended s 167(3) provides:
‘The Constitutional Court —

(a) is the highest court of the Republic; and
(b) may decide —
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by that
Court; and [italicised emphasis in the original text]
(c) makes the final decision whether a matter is within its jurisdiction.’”
So, once again, when you read law reports concerning constitutional matters from
SAFLII or Juta or LexisNexis, remember that Friday, 23 August 2013 is the critical
turning point about the jurisdiction of the Constitutional Court. From that day the
Constitutional Court became our ‘apex court’.
You will see later in this guide how that critical date of Friday, 23 August 2013 affects
the way we determine constitutional issues. Friday, 23 August 2013 is also the
commencement date for the Superior Courts Act 10 of 2013.
THE SUPERIOR COURTS ACT MAKES LAWYERS MUCH MORE APPEALING

You will note that in the exercises attached to this guide how the Superior Courts Act,
taken together with the change to s 167(3) of the Constitution, has made legal
practitioners much more appealing. Chapter 5 of the Superior Courts Act deals with
Orders of constitutional invalidity, appeals and settlement of conflicting decisions
in ss 15 to 20.
Concerning appeals, first one needs leave to appeal: s 16(1) read with s 17(1).
This would be for both constitutional and non-constitutional matters and issues.
(a) If one fails to get leave to appeal, one may apply to the Supreme Court of
Appeal (SCA) in terms of s 17(2)(b).
(b) If that is not to be, (so to speak) then one may apply to the President of the
SCA in terms of s 17(2)(f). However, you must motivate ‘exceptional
circumstances’ for a reconsideration of the leave to appeal.
(c) If the President of the SCA refuses leave to appeal, then one must approach the
apex court, 8 the Constitutional Court.
8 Spilhaus Property Holdings (Pty) Ltd v MTN (Pty) Ltd 2019 (4) SA 406 (CC) at [45].

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(d) If the matter is a constitutional issue, s 167(3)(b)(i) of the Constitution will

suffice.
(e) If the matter is a non-constitutional issue, you will use s 167(3)(b)(ii). 9
Note well: s 17(2)(f) of the Superior Courts Act is part of the leave-to-appeal
process: see Cloete v S and A Similar Application 2019 (4) SA 268 (CC) at para
[33] and S v Liesching 2017 (2) SACR 193 (CC) at paras [60] and [61].
Before we continue the constitutional path, let us complete the appeal cycle on non-
constitutional issues. Section 167(3)(b)(ii) of the Constitution permits an appeal on non-
constitutional issues (any other matter) to the Constitutional Court under the following
conditions:
(a) IF 10 the Constitutional Court grants leave to appeal;

(b) on the grounds that the matter raises an arguable point of law;
(c) of general public importance;
(c) which ought to be considered by that Court.
Sometimes, inadvertently, litigants forget requirements (b), (c) and (d) for appeals on
non-constitutional issues because they rely too heavily on (a). Then, for lack of
jurisdiction, such litigants lose their appeal. 11
Whether it is a constitutional or a non-constitutional matter, the Constitutional Court

will determine if it is in the interests of justice to hear that appeal. The test for the
interests of justice is best summed up by Langa DP in S v Boesak 2001 (1) SA 912
(CC) at para [12]. 12
9 Appeals to the Constitutional Court, the ‘apex court’, are super-appeals. See Tiekiedraai Eiendomme
(Pty) Ltd v Shell South Africa Marketing (Pty) Ltd 2019 (7) BCLR 850 (CC) ([2019] ZACC 14) at para [23]
and Economic Freedom Fighters v Gordhan and Others 2020 (6) SA 325 (CC) at para [30].
10 Harms, D Does the Constitutional Court have plenary unlimited appeal jurisdiction? De Rebus 2017
(April) DR 13: Note the word IF.
11 General Council of the Bar of South Africa v Jiba and Others 2019 (8) BCLR 919 (CC) ([2019] ZACC
23) at paras [38] to [60], especially at paras [43] (matter to be determined on the pleadings), [44]
(pleadings do not raise a constitutional issue), [49] (incorrect determination of facts does not raise a
constitutional issue) and [59] (the wrong applicable of an established test does not raise an arguable
point of law).
12 “A finding that a matter is a constitutional issue is not decisive. Leave may be refused if it is not in
the interests of justice that the Court should hear the appeal. The decision to grant or refuse leave is a
matter for the discretion of the Court and, in deciding whether or not to grant leave, the interests of
justice remain fundamental. In considering the interests of justice, prospects of success, although not the
only factor, are obviously an important aspect of the enquiry. An applicant who seeks leave to appeal
must ordinarily show that there are reasonable prospects that this Court will reverse or materially alter
the decision of the SCA.” The principle remains the same for non-constitutional issues under section
167(3)(b)(ii) of the Constitution. See also Competition Commission of South Africa v Pickfords Removals
SA (Pty) Ltd 2021 (3) SA 1 (CC) at paras [15] to [18].

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PRESIDENT OR STATE PRESIDENT

There is one final technical issue about the Constitution you need to remember. The
President of the Republic of South Africa under the Constitution, 1996 is NOT a “State
President”.
FW De Klerk was the last State President of the (apartheid) Republic of

South Africa.
Nelson Mandela was the first President of the (democratic) Republic of
South Africa.
Many journalists, commentators and even lawyers miss this point. The last official use
of the term State President stems from the Constitution of the Republic of South
Africa Act 200 of 1993 – “the Interim Constitution” – which created the position of
President effective from 27 April 1994 when the Interim Constitution came into
operation. Of course, Act 200 of 1993 was signed into operation by the then last State
President. 13
13 See Schedule 6 Transitional Arrangements, Interpretation of legislation at item 3(2)(b) of the

Constitution of the Republic of South Africa, 1996.

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SUMMARY OF THE TECHNICAL ISSUES ABOUT THE CONSTITUTION

27 April 1994 Post of the President of the Republic of South Africa
established in terms of the Constitution of the Republic of
South Africa Act 200 of 1993.
10 May 1994 Nelson Mandela inaugurated as President of the Republic
of South Africa.
14
14 June 1995 Constitutional Court Complementary Act 13 of 1995.
4 February 1997 Commencement of the Constitution, 1996
21 November 2001 The President of the Constitutional Court receives the
title of Chief Justice and the title President of the
Supreme Court of Appeal is established.
1 December 2003 Rules regulating proceedings before the Constitutional
Court.
27 June 2005 Commencement of the Citation of Constitutional Laws Act
5 of 2005.
23 August 2013 The Constitution Seventeenth Amendment Act of 2012
makes the Constitutional Court the ‘apex court’ for all
constitutional and non-constitutional matters.
23 August 2013 Commencement of the Superior Courts Act 10 of 2013
BY THE WAY:
HAVE YOU READ THE CONSTITUTION?
To help you read the Constitution, the table below simply lists all the Chapters in the
Constitution. Each Chapter records the section numbers without listing the section
headings. This layout gives you a basic overview of the Constitution.
14 The Constitutional Court Complementary Act was enacted before the adoption of the Constitution,
1996. However, s 16 of the Complementary Act, as amended in 1997, concerns the rules of the
Constitutional Court. It is the only section in that Act not repealed by the Superior Courts Act 10 of 2013.
The most up-to-date rules of the Constitutional Court, promulgated under the Complementary Act, came
into effect on 1 December 2003. See the application of the Rules later in the Guide.

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Table: Basic overview of the Constitution of the Republic of South

Africa, 1996
[The purpose of this table is to focus attention on all the Chapters of the Constitution]
PREAMBLE CHAPTER 8 Courts and Administration

165-180 of Justice
CHAPTER 1 Founding Provisions CHAPTER 9 State Institutions

1-6 181-194 Supporting Constitutional
Democracy
CHAPTER 2 Bill of Rights CHAPTER 10 Public Administration
7-39 195-197
CHAPTER 3 Co-operative CHAPTER 11 Security Services
40-41 Government 198-210
CHAPTER 4 Parliament CHAPTER 12 Traditional Leaders
42-82 211-212
CHAPTER 5 The President and CHAPTER 13 Finance
83-102 National Executive 213-230A
CHAPTER 6 Provinces CHAPTER 14 General Provisions
103-150 231-243
CHAPTER 7 Local Government SCHEDULES
151-164
The table on the next page plays around with the order of the Chapters. So, for
example, where much of the text is similar in certain Chapters, like Parliament and
Provinces, the Chapters are placed side-by-side. Other Chapters are placed side-by-
side to emphasise their relationships.
Chapter 2 Bill of Rights is next to Chapter 8 Courts and Administration of

Justice:
Chapter 3 Co-operative Government and Chapter 10 Public Administration are
placed side-by-side; and,
Chapter 9 State Institutions Supporting Constitutional Democracy is placed next
to Chapter 11 Security Services.

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Table: Stylised overview of the Chapters in the Constitution, 1996

[The purpose of this table is to focus attention on areas of repetition in the text like
Parliament and the Provinces and to juxtapose various Chapters to assist reading the text]
PREAMBLE
CHAPTER 1 Founding Provisions CHAPTER 12 Traditional Leaders
1-6 211-212
CHAPTER 2 Bill of Rights CHAPTER 8 Courts and
7-39 165-180 Administration of
Justice
CHAPTER 3 Co-operative CHAPTER 10 Public Administration
40-41 Government 195-197
CHAPTER 4 Parliament CHAPTER 6 Provinces
42-82 103-150
CHAPTER 5 The President and CHAPTER 7 Local Government
National Executive 151-164
83-102
CHAPTER 9 State Institutions CHAPTER 11 Security Services
Supporting Constitutional 198-210
Democracy
181-194
CHAPTER 13 Finance CHAPTER 14 General Provisions
213-230A 231-243
SCHEDULES
The placement side-by-side (the fancy word is juxtaposition) serves to emphasise the
need for each Chapter in the Constitution to be taken seriously and to be given due
weight. The Constitution sets out the values, rights and obligations of all the people in
South Africa, how our Parliament and provincial legislatures work, how the national
and provincial executives implement their mandates, how the courts control and keep
the supremacy of the Constitution in balance between many competing interests to
preserve our hard-fought democratic system.
Ultimately, the ideal is that you will be so familiar with the Constitution you will
be able to advise clients on constitutional law matters that fall outside the
Chapter 2 Bill of Rights, as well!

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LANGUAGE AND LEARNING
1. The English language

The first matter to address is the use of language. “The essential medium of the
existence of law is language.” 15 There are eleven official languages in South Africa:
section 6 of the Constitution, 1996. However, in our constitutional law, English has a
disproportionate position compared to the other languages. Most of the constitutional
law judgments and virtually all the constitutional law textbooks are written in English.
While that situation is very advantageous to people who speak English as a first language,
most candidate legal practitioners do not speak English as a first language.
On 2 May 2013 the Use of Official Languages Act 12 of 2012 became law. The
preamble 16 to the Act explains its origin. Section 2 sets out the objects of the Act as
follows:
“(a) to regulate and monitor the use of official languages for government purposes
by national government;
(b) to promote parity of esteem and equitable treatment of official languages of the
Republic;
(c) to facilitate equitable access to services and information of national
government; and
(d) to promote good language management by national government for efficient
public service administration and to meet the needs of the public.”
(Emphasis added.)
In Gelyke Kanse and Others v Chairperson of the Senate of the University of

Stellenbosch and Others 2020 (1) SA 368 (CC) Cameron J said at para [48]:
15 On Jurilinguistics: The Principles and Applications of Research on Language and Law Article in Revista
de Llengua i Dret · December 2017 by Juan Jiménez-Salcedo and Javier Moreno-Rivero.*
Consider also “To succeed in the profession of law, you must seek to cultivate command of language.
Words are the lawyer’s tools of trade. When you are called upon to address a judge, it is your words
which count most.” Lord Denning The Discipline of Law (Butterworths, 1979) page 5.
16 “Preamble
WHEREAS the use of the Republic’s official languages must be promoted and pursued in accordance with
the Constitution of the Republic of South Africa, 1996;
AND WHEREAS s 6 of the Constitution of the Republic of South Africa, 1996, provides for 11 official
languages of South Africa; recognises the diminished use and status of indigenous languages and
requires the State to take practical and positive measures to elevate the status and advance the use of
indigenous languages;
AND WHEREAS the Constitution of the Republic of South Africa, 1996, requires all official
languages to enjoy parity of esteem and be treated equitably; (emphasis added)
AND WHEREAS 6 (4) of the Constitution of the Republic of South Africa, 1996, provides that national
government must regulate and monitor its use of official languages by legislative and other measures, …
.”

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“The flood-tide of English risks jeopardising the precious value of our entire
indigenous linguistic heritage.” (Emphasis added.)
As candidate legal practitioners you know that the following nine languages naturally
form part of our indigenous linguistic heritage. They are Sepedi, Sesotho, Setswana,
siSwati, Tshivenda, Xitsonga, isiNdebele, isiXhosa and isiZulu. 17
English is not an indigenous language of Africa.
But what of Afrikaans?
In footnote 36 to paragraph [25] of Gelyke Kanse Cameron J said: “From a linguistic

standpoint, Afrikaans is properly classified not only as a fully-fledged, independent
language rather than a dialect, but also as a language indigenous to South
Africa.” (Emphasis added.)
And in the additional concurring judgment, Chief Justice Mogoeng said at para [61]:
“With all that done and dusted, it needs be said that Afrikaans is indeed an African
language, our historic pride to be treasured by all citizens. Its existence precedes
colonialism. And its subsequent development with the appropriately enriching infusion
of terms from Dutch or any other European language and the unjust attempt to
impose it on others, do not at all affect its original African DNA.” (Emphasis added.)
Is there a practical way to deal with language disadvantage?
This guide, while written in English, will avoid jargon. It will also attempt to explain
some constitutional law terms and phrases – which we must use – as simply as
possible. The idea is to give you the tools to be able to talk with your clients so that
they can understand you and you can understand them.
The guide explains basic concepts like constitution, democracy, and separation of
powers: then it moves to more tricky concepts like accountability, constitutional
issue, jurisdiction, justiciable, interpretation, the rule of law, the principle (or
doctrine) of legality, administrative decisions, rationality, remedies and the
limitations analysis, and other assorted gremlins from the constitutional law
lexicon of legal language.
As you will see, the guide will build on your accumulated wealth of knowledge. You
will recognise aspects of your learning that stem not just from university, but also
from school, home and your personal interests.
In short, you already know more than you realise you do. Now is the time to
build on your existing knowledge base. Then you will be able to advise your clients
with confidence, clarity and accuracy.
17 Head of Department; Mpumalanga Department of Education v Hoërskool Ermelo 2010 (2) SA 415
(CC); 2010 (3) BCLR 177 (CC); [2009] ZACC 32 at para [47].

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2. Why do we need to read and learn?

The second matter to address is why we need to know a vast amount about the
world, including the law, before we give advice to our clients. Our
empowerment lies in our education.
Moseneke DCJ (Mogoeng CJ, Bosielo AJ, Cameron J, Froneman J, Jafta J,

Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring) said:
18
“[1] Teaching and learning are as old as human beings have lived. Education is
primordial and integral to the human condition. The new arrivals into
humankind are taught and learn how to live useful and fulfilled lives. So,
education’s formative goodness to the body, intellect and soul has been beyond
question from antiquity. And its collective usefulness to communities has been
recognised from prehistoric times to now. The indigenous and ancient African
wisdom teaches that ‘thuto ke lesedi la sechaba’; ‘imfundo yisibani’
(education is the light of the nation) and recognises that education is a
collective enterprise by observing that it takes a village to bring up a child.”
(Emphasis added.)
18 Federation of Governing Bodies for SA Schools v MEC for Education, Gauteng 2016 (4) SA 546 (CC)
(2016 (8) BCLR 1050) at para [1]. (Antiquity, of course, means the ancient past.)
In paragraph [2] the Court continued as follows:

[2] Of this Aristotle, Immanuel Kant, Karl Marx, Mahatma Gandhi, Helen Keller, Nelson Mandela, Kofi
Annan, Malala Yousafzai, The Holy Bible, Buddha, and The Holy Quran have said:
• Education is an ornament in prosperity and a refuge in adversity.’ (Aristotle);
• ‘How then is perfection to be sought? Wherein lies our hope? In education, and in nothing else.’
(Immanuel Kant);
• ‘The education of all children, from the moment that they can get along without a mother’s care,
shall be in state institutions.’ (Karl Marx);
• ‘If we want to reach real peace in this world, we should start educating children.’ (Mahatma Gandhi);
• ‘Education should train the child to use his brains, to make for himself a place in the world and
maintain his rights even when it seems that society would shove him into the scrap-heap.’ (Helen
Keller);
• ‘Education is the great engine of personal development. It is through education that the daughter of
a peasant can become a doctor, that the son of a mineworker can become the head of the mine, that
a child of a farmworker can become the president of a great nation. It is what we make out of what
we have, not what we are given, that separates one person from another.’ (Nelson Mandela);
• ‘Education is a human right with immense power to transform. On its foundation rest the
cornerstones of freedom, democracy and sustainable human development.’ (Kofi Annan);
• ‘There are many problems, but I think there is a solution to all these problems; it’s just one, and it’s
education.’ (Malala Yousafzai);
• ‘My people are destroyed for lack of knowledge.’ (The Holy Bible: Hosea 4:6);
• ‘To have much learning, to be skillful in handicraft, well-trained in discipline, and to be of good
speech — this is the greatest blessing.’ (Buddha);
• ‘Are those equal, those who know and those who do not know? It is those who are endowed with
understanding that receive admonition.’ (The Holy Quran: Surah Al Zumar 39:9).

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In AB and Another v Pridwin Preparatory School and Others 2020 (5) SA 327
(CC) Nicholls AJ (Mogoeng CJ, Cameron J and Froneman J concurring) on education,
stated at para [1]:
“[1] Education is central to every child’s development. It is the key to a better life. It has
been eloquently articulated that:
“Literacy is a bridge from misery to hope. It is a tool for daily life in modern
society. It is a bulwark against poverty and a building block of development, an
essential complement to investments in roads, dams, clinics and factories.
Literacy is a platform for democratisation, and a vehicle for the promotion of
cultural and national identity. Especially for girls and women, it is an agent of
family health and nutrition. For everyone, everywhere, literacy is, along with
education in general, a basic human right.” [Kofi Annan's speech delivered on
International Literacy Day 1997.]
LET US BEGIN WITH THE BASIC CONCEPTS
A. What is a Constitution?
The Oxford Dictionary defines a constitution as a body of fundamental principles or
established precedents according to which a state, or other organisation, is
acknowledged to be governed.
You will recall you have heard of a philosopher named Aristotle (384-322 BCE). One
of the books Aristotle wrote is Politics. In that book Aristotle identified three main
types of constitution for the government of a (city) state. Aristotle firmly believed that
each form of government was able to govern for the good of all the people in the state
at the same time.
YOU WILL IMMEDIATELY RECOGNISE THE THREE TYPES OF CONSTITUTION
Monarchy = rule by one person and a group of advisers

Aristocracy = rule by a group of well-meaning influential people
Democracy = rule by the entire citizenry, that is, all eligible voters in the state
But Aristotle was not naïve. He recognised that sometimes rulers would not rule for
the common good. Some rulers would rule for themselves and their own interests. So,
Aristotle tweaked his model. He divided each type of constitution into good or bad.
And, being a philosopher, Aristotle gave each bad constitution a new name. For
the good rulers in each type of constitution, he used the names set out in the column
on the left below. For the bad type of rulers Aristotle used the name on the right.

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Monarch/monarchy vs Tyrant/tyranny
Aristocrats/aristocracy vs Oligarchs/oligarchy
Democrats/democracy vs Mob rulers/ochlocracy
In Latin, a tyrant is referred to as a dictator. We use the same word in English.
Take note: Aristotle believed democracy was good.
The three forms of constitution still exist today, in a way. Let us consider some
modern versions of the three constitutions mentioned by Aristotle. 19
Monarchies
You know monarchies with strong executive powers (prerogative powers) like the
Kingdom of Lesotho and the Kingdom of Eswatini (Swaziland). The Kingdom of Saudi
Arabia is a monarchy where the monarch still holds strong executive powers. The
United Kingdom is a constitutional monarchy where the monarch does not retain
formal authority but has ceremonial authority, nonetheless. Most of the monarchies in
Europe mimic the UK constitutional monarchy.
Aristocracies/oligarchies
There are no aristocratic governments in the world today. However, there are
arguably two oligarchies. They are the Republic of China (controlled by the Communist
Party of China) 20 and the Islamic Republic of Iran. 21
From the Union of South Africa (31 May 1910) through the Republic of South Africa
(31 May 1961) our country was an oligarchy until 26 April 1994.
From 27 April 1994 South Africa became a democracy. All our citizens were able
to vote. That is a key indicator of a democracy.
Democracies
The world abounds with democracies today. There are many types of democracies
too. So, what type of democracy is South Africa?
For the purpose of this guide a brief discussion of a democracy is important.
19 In fact, it was the historian Herodotus (484-425 BCE) in the Histories who first identified the three
forms of constitution. See The Constitutional Debate: Herodotus’ Exploration of Good Government by C.
Sydnor Roy 26 December 2012 Temple University. [Accessed 30 September 2019] -
https://research.ncl.ac.uk/histos/documents/2012A13.RoyConstitutionalDebate.pdf
20 The Communist Party of China has a membership of 91 million people. The population of China is
estimated at 1433 million people. So, the Communist Party comprises about 6.35% of the population.
21 The Islamic Republic of Iran is a combination of Islamic theocracy and a democracy where candidates
for elections are vetted by the Guardian Council.

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B. What is a democracy?
A good start to defining the word democracy comes from Theunis Roux: 22
“Democracy is a noun permanently in search of a qualifying adjective.” Why does
Theunis Roux want us to qualify what is meant by the word democracy?
Surely, we all know that democracy means ‘that decisions affecting the members of a
political community should be taken by the members themselves, or at least by
elected representatives whose power to make those decisions ultimately derives from
the members’? 23
Some commentators say there are only two types of democracy: direct democracy
and representative democracy. Other commentators say there are nine or more types
of democracy. Indeed, Theunis Roux has a list longer than the list below!
Types of democracy
24
The main types or forms of democracy are:
1. Direct democracy
2. Representative democracy
3. Constitutional democracy
4. Parliamentary democracy
5. Deliberative democracy
6. Participatory democracy
7. Presidential democracy
8. Islamic democracy
9. Social democracy
10. Peoples’ democracy
“Democracies the world over vary in form and tradition. However, they share the
common foundational value of government by the people. In South Africa this
occurs through a representative democracy that is both participatory and
deliberative. 25 This stems from the recognition that political rights in the
22 Constitutional Law of South Africa 2nd Edition Stu Woolman & Michael Bishop January 2013: Revision
Service 5 Chapter 10 Democracy at 10.1.
23 Ibid. (Latin, short for ibidem, meaning the same place) is the term used to provide an endnote or
footnote citation or reference for a source that was cited in the preceding endnote or footnote.
Essentially, “ibid” is a fancy form of ditto marks. English Stack Exchange. While ditto would do,
academics disagree.
24 Vaishnavi Patil for some of the items on the list. https://www.scienceabc.com/social-science/different-

types-democracy-direct-representative-presidential-parliamentary.html [accessed 26 September 2019].
25 SA Veterinary Association v Speaker of The National Assembly 2019 (3) SA 62 (CC) at para [18].
See also: Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416
(CC) (2006 (12) BCLR 1399; [2006] ZACC 11) at para [115] where Ncgobo J said:
[115] In the overall scheme of our Constitution, the representative and participatory elements of our
democracy should not be seen as being in tension with each other. They must be seen as mutually
supportive. General elections, the foundation of representative democracy, would be meaningless without
massive participation by the voters. The participation by the public on a continuous basis provides

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Constitution facilitate both the election of representative leaders and a continuing

entitlement by the people to be involved in political decision-making.”
So, our Constitutional Court holds that South Africa is a representative democracy
that is both participatory and deliberative. Our representatives are elected to
parliament, to provincial legislatures and municipal councils to represent the voters.
In short, South Africa is a constitutional representative democracy that is

both participatory and deliberative.
What then are deliberative, participatory and constitutional democracies?
Deliberation (the noun) means a long and careful consideration. Deliberative (the
adjective) means careful consideration by way of debate, argument and persuasion.
Although Parliament seemed to be theatre in 2016 and 2017 when the Economic
Freedom Fighters challenged the former President Jacob Zuma, the real deliberations
at Parliament occur in the parliamentary committees.
Why are parliamentary committees good at deliberation?
“[P]arliamentary committees comprise members of a diversity of political parties and

views. No consolidated or hegemonic view, or interest, is likely to preponderate to the
exclusion of other views. As importantly, parliamentary committees function in public.
The questions they ask of those reporting to them aim at achieving public accountability.” 26
In short, the arguments that go on in the National Assembly and in the parliamentary
committees into policy making and debating new laws form part of deliberative
democracy.
What is participatory democracy?
“Public participation in the law-making process is a requirement, specifically provided

for in our Constitution, that must be met by our law-making institutions.” 27
vitality to the functioning of representative democracy. It encourages citizens of the country to be

actively involved in public affairs, identify themselves with the institutions of government and become
familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling
their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic
accommodation calculated to produce laws that are likely to be widely accepted and effective in practice.
It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and
public character, it acts as a counterweight to secret lobbying and influence-peddling.
Participatory democracy is of special importance to those who are relatively disempowered in
a country like ours where great disparities of wealth and influence exist. (Emphasis added.)
Is that rosy view substantiated by the performance of our administration and

parliamentarians in South Africa?
26 Glenister v President of the RSA 2011 (3) SA 347 (CC) at para [243]. Moseneke DCJ and Cameron J
referred to section 59 of the Constitution in their footnote. Preponderate means outweigh or dominate.
27 Law Society of South Africa and Others v President of the Republic of South Africa and Others 2019 (3) SA 30
(CC) at para [87].

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In that passage Chief Justice Mogoeng was referring to ss 57(1), 72(1) and 118(1) of
the Constitution. Public participation requires parliament to consult with the public
during the legislative process. Indeed, ‘A failure to recognise the duty to consult as
legally enforceable fosters arbitrariness and autocracy and undermines the
participatory democracy which is at the heart of our Constitution’. 28
One of the questions you will face in the future as a legal practitioner is whether the
consultation process concerning some statute or regulation complied with the public
participation requirement in the Constitution. You may face that very question
concerning Chapter 4 of the Local Government: Municipal Systems Act 32 of 2000.
Public participation is also required at municipal level.
Constitutional democracy versus parliamentary sovereignty
The requirement for public participation in the legislative process is a clear sign that
South Africa has moved away from the doctrine of parliamentary sovereignty.
The doctrine of the sovereignty of parliament comes from the Parliament of the United
Kingdom of Great Britain and Northern Ireland, known as the Westminster system.
Parliamentary sovereignty means that in the United Kingdom, Parliament is the
supreme legal authority.
In South Africa, the Constitution is our supreme law. Law or conduct inconsistent
with the Constitution is invalid, and the obligations imposed by the Constitution must
be fulfilled. 29 Of course, if all our law and conduct must be consistent with the
Constitution, that has a direct impact on the separation of powers.
C. The separation of powers

You have all heard of the separation of powers. At university and school, you learned that
the concept comes from Montesquieu – The Spirit of the Laws. 30 So, what does it mean?
Traditionally the powers were separated into three independent functions:
Legislation – making laws

Administration – carrying out, executing and enforcing the laws, and
Judicial – interpreting and applying the laws.
28 Bafokeng Land Buyers Association and v Royal Bafokeng Nation 2018 (5) SA 566 (NWM) at para
[48].
29 See again s 2 of the Constitution of the Republic of South Africa, 1996 and Doctors for Life
International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) at para [38].
30 De l’esprit des loix 1748 (old French spelling – modern is lois), originally translated as On The
Spirit of the Laws. The concept was first identified by a Greek historian, Polybius (208-125 BCE) in
Book Six on the Roman Constitution of The Histories written circa 146 BCE.
https://www.libertarianism.org/columns/polybius-origins-separation-powers [accessed 24 Sep 2019]
See also: Marshall Davies Lloyd: Polybius and the Founding Fathers: the separation of powers 1999
http://www.mlloyd.org/mdl-indx/polybius/intro.htm [accessed 24 Sep 2019]

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The rationale for the separation of powers

The rationale (a set of reasons) for the separation of powers comes from three
important features observed from human history.
First, in the past, when a ruler could make the law, enforce the law and be the judge
of those obliged to obey the law, that ruler was the law. That ruler made the law for
everyone to obey, except, of course, himself. Now, when a ruler has that amount of
power, it is not long before he begins to abuse that power. And that abuse harms the
people who are subject to his rule.
Second, and perhaps more importantly, when a ruler ruled a small group of people,
the ruler might have been competent enough to do all the work. But human societies
have become more and more complex over time. So, the ruler would have to get help.
And, slowly but surely, he would appoint people to perform part of his functions. It
was then that rulers separated the powers but kept control of the personnel using
those powers.
Logically, the next step was to avoid an excessive concentration of those powers. 31
Despite the original idea that each branch of government should operate completely
independently, a complete separation of powers will never be possible. Two easy
examples suffice. When a judge decides a point of law in a dispute from last year, the
judge makes precedent for the future. That precedent is judge-made law. When a
Minister makes regulations, that is executive-made law.
Third, “[k]nowing that it is not practical for all 55 million of us to assume governance
responsibilities and function effectively in these three [legislative, executive and judicial]
arms of the state and its organs, ‘we the people’ designated messengers or
servants to run our constitutional errands for the common good of us all. These
errands can only be run successfully by people who are unwaveringly loyal to the core
constitutional values of accountability, responsiveness and openness. And this would
explain why all have to swear obedience to the Constitution before the assumption of
office.” 32 (Emphasis added.)
How does our Constitution deal with the separation of powers?
The Constitution of the Republic of South Africa Act 200 of 1993 (the ‘Interim
Constitution’) required in its Preamble that the Constitutional Principles agreed by
solemn pact be reflected in the final Constitution. Constitutional Principle VI in
Schedule 4 of the Constitutional Principles reads:
“VI.
There shall be a separation of powers between the legislature, executive and
judiciary, with appropriate checks and balances to ensure accountability,
responsiveness and openness.”
31 Pius Langa The separation of powers in the South African Constitution (2006) 22 SAJHR 2 at 4.
32 United Democratic Movement v Speaker, National Assembly and Others 2017 (5) SA 300 (CC) per
Mogoeng CJ at para [3].

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The Constitution, 1996 does not use the phrase “‘separation of powers’, but the
constitutional design clearly embraces and entrenches it.” 33 Although conceived as a
genuine separation of powers, the separation of powers is always one of partial
separation. 34 Our Constitution deals with the authority of each branch of
government in separate Chapters and sections. The Constitution sets out:
(a) legislative authority in s 43;

(b) executive authority in s 85; and,
(c) judicial authority in s 165.
Legislative authority in South Africa is vested in Parliament, the provincial

legislatures and Municipal Councils. 35
43 Legislative authority of the Republic

In the Republic, the legislative authority-
a) of the national sphere of government is vested in Parliament, as set out in s 44;
b) of the provincial sphere of government is vested in the provincial legislatures, as
set out in s 104; and
c) of the local sphere of government is vested in the Municipal Councils, as set out
in s 156.
Executive authority is vested in the President.

The President exercises that authority together with Cabinet members.
Cabinet members are the Ministers of State, each tasked with co-ordinating the
work of state departments and administrations. ‘Administration’ means ‘executive’.
85 Executive authority of the Republic

(1) The executive authority of the Republic is vested in the President.
(2) The President exercises the executive authority, together with the other
members of the Cabinet, by-
(a) implementing national legislation except where the Constitution or an Act
of Parliament provides otherwise;
33 Tlouamma v Speaker, National Assembly 2016 (1) SA 534 (WCC) at para [62], criticized in UDM v
Speaker, NA 2017 (5) SA 300 (CC) but not on the history summary in para [62].
34 As the Court held at [109] in the first certification judgement: Ex parte Chairperson of the
Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996
1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26).
See also My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC) at para [150].
35 Municipalities have original legislative power, unlike the pre-constitutional era when municipalities
only had subordinate legislative powers. See City of Cape Town and Another v Robertson and
Another 2005 (2) SA 323 (CC) (2005 (3) BCLR 199) at paras [53] to [60].

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(b) developing and implementing national policy;

(c) co-ordinating the functions of state departments and administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the Constitution
or in national legislation.
Judicial authority is vested in the courts.
Judicial authority
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and organs
of state to which it applies.
(6) The Chief Justice is the head of the judiciary and exercises responsibility over
the establishment and monitoring of norms and standards for the exercise of
the judicial functions of all courts.
The South Africa Act, 1909 established the Union of South Africa. It designated Cape
Town the legislative capital (seat of Parliament), Pretoria the administrative
capital (seat of the Executive) and Bloemfontein the judicial capital (seat of the
Appellate Division). Those were the capital cities of three of the four former provinces
of South Africa: the Cape, Transvaal and Orange Free State. Pietermaritzburg, then
capital of Natal, received financial compensation for not getting a separation of
powers capital.
In our Constitution today, only the seat of Parliament at Cape Town remains stated
explicitly. See section 42(6) of the Constitution. The other seats (Pretoria and
Bloemfontein) remain in practice. And, as we noted above, the apex court is now
seated at Johannesburg.
In the future you may need to advise clients on whether there has been a breach of
the separation of powers. So, you will use the checks and balances test.

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36
THE CHECKS AND BALANCES TEST
Has one branch overreached its powers and trespassed into the terrain or domain of another?
Has one branch shown deference or discourtesy to the other?
If one branch has overreached, what is the remedy?
See the exercises attached to this guide for practical examples.
NOW FOR MORE TECHNICAL (TRICKY) CONCEPTS
D. Accountability, responsibility and transparency

We often lament the adage: No-one notices you until you do something wrong. 37 But,
in effect, accountability, responsibility and transparency properly carried out will
render the accountable, responsible and transparent person (pardon the pun) virtually
invisible!
So, what are accountability, responsibility and transparency?
Accountability (noun) is defined as the fact or condition of being responsible.

Accountable (verb) is defined as being answerable for actions, inaction and decisions.
Accountable requires a person to explain and, if necessary, to justify their actions, inaction
38
and decisions.
Responsibility has severable meanings in various dictionaries. But, in the context of

constitutional considerations the most important meaning is what is the mandate of
the person or institution who or which needs to account for that responsibility?
In short, responsibility is mandate.

Has the person (natural or juristic) carried out their mandate? If yes, responsibility is
established. If no, a breach of the Constitution has occurred. Responsibility requires
36 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000
(2) SA 1 (CC) at paras [65] to [66]. Consider also para [67]. See also Amabhungane Centre for
Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others 2021
(3) SA 246 (CC) at para [143].
37 Quantitative Analysis for System Applications: Data Science and Analytics Tools and Techniques
by Daniel A. McGrath Ph.D., at Chapter 6: to wit: “Being a data scientist is like being an offensive
lineman: no one notices you until you do something wrong!” (An American – gridiron – football
metaphor.)
38 In United Democratic Movement v Speaker, National Assembly 2017 (5) SA 300 (CC) Mogoeng
CJ, in a unanimous judgment, said:
“[33] And accountability is necessitated by the reality that constitutional office bearers occupy
their positions of authority on behalf of and for the common good of all the people. It is the
people who put them there, directly or indirectly, and they, therefore, have to account for the
way they serve them.”

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one to understand one’s mandate and to perform what is necessary to carry out that
mandate.
In practical terms, RESPONSIBILITY is

KNOW YOUR MANDATE
ANSWER YOUR PHONE
RESPOND TO YOUR EMAILS
STAY IN TOUCH WITH YOUR CLIENTS on a weekly basis,
AND RESPOND TO YOUR CLIENTS’ CALLS IN EMERGENCY SITUATIONS.
If state officials followed that example, ninety percent or more of service delivery
protests would no longer occur. The protests would not be necessary or needed.
Remember, no response or an inadequate response are both unconstitutional.
RESPONSIBILITY MEANS THE ABILITY TO RESPOND – NOW:

Not Next Week, Next Month, Next Year or ‘Just Now’.
NOW
Responsibility is also key to the separation of powers and the need for legislative
39
oversight of the executive.
The separation of powers also makes the courts responsible for ‘ensuring that
unconstitutional conduct is declared invalid and that constitutionally mandated
40
remedies are afforded for violations of the Constitution’.
39 See the remarks of Mogoeng CJ in United Democratic Movement v The Speaker, National Assembly
2017 (5) SA 300 (CC) at:
“[37] In anticipation of a President and this constitutionally envisaged team’s possible remissness in the
execution of their constitutional mandate, provision was made to minimise or address that
possibility. Those who represent the people in Parliament have thus been given the constitutional
responsibility of ensuring that members of the executive honour their obligations to the people.
Parliament, that elects the President and of which the Deputy President, ministers and their
deputies are members, not only passes legislation but also bears the added and crucial
responsibility of scrutinising and overseeing executive action.
[38] Members of Parliament have to ensure that the will or interests of the people find expression
through what the state and its organs do. This is so because Parliament ‘is elected to represent the
people and to ensure government by the people under the Constitution’. This it seeks to achieve
by, among other things, passing legislation to facilitate quality service delivery to the people,
appropriating budgets for discharging constitutional obligations and holding the executive and
organs of state accountable for the execution of their constitutional responsibilities.”
40 Allpay Cons. Inv. Holdings (Pty) Ltd v CEO, SASSA 2014 (4) SA 179 (CC) at para [42].

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Transparency (noun) means shining a light through or onto something. In politics

and constitutional law, the word is a metaphor for open, accountable and above-board
dealing with people, institutions and the law. It is the opposite to hidden, secret and
clandestine dealing. The latter are usually associated with corrupt dealings.
Transparency is the opposite to corruption.
Transparency means people are entitled to know what the three branches of
government are doing and how they do it. So, Parliament must embrace participation
with the public and both the executive and judiciary must give reasons for their
decisions. The executive gives reasons which may be subject to review. The judges
give judgments which may be subject to appeal.
In the Constitution, the basic values and principles governing public administration are
set out in section 195. Taken together these values are a constitutional law
41
explanation of transparency.
E. Constitutional issue – constitutionalism – constitutionality
How does one define a constitutional issue?
The traditional distinction is between constitutional and non-constitutional issues or

matters. But as long ago as 2002 Ngcobo J said:
41 195 Basic values and principles governing public administration
(1) Public administration must be governed by the democratic values and principles enshrined in the
Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and maintained.

(b) Efficient, economic and effective use of resources must be promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially, fairly, equitably and without bias.
(e) People’s needs must be responded to, and the public must be encouraged to participate in policy-
making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely, accessible and
accurate information.
(h) Good human-resource management and career-development practices, to maximise human
potential, must be cultivated.
(i) Public administration must be broadly representative of the South African people, with employment
and personnel management practices based on ability, objectivity, fairness, and the need to
redress the imbalances of the past to achieve broad representation.

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“Whether one can speak of a non-constitutional issue in a constitutional

democracy where the Constitution is the supreme law and all law and
42
conduct has to conform to the Constitution is not free from doubt.”
In 2005 Lewis J wrote in the South African Journal of Human Rights that the
43
distinction between constitutional and other issues is an illusion.
So, why should we entertain this illusion?
Ngcobo J had already given the short answer in 2002: “However, as Judges who
swore to uphold the Constitution, we must accept that such distinction exists
and try to make sense of that distinction.”
The best measure to make sense of the distinction between constitutional and non-
constitutional issues, is to follow the decisions of the Constitutional Court.
44
The Constitutional Court has ruled that the following are constitutional matters (issues):
(a) the interpretation, application or upholding of the Constitution itself including

issues concerning the status, powers or functions of an organ of State and
disputes between organs of State;
(b) the development of (or the failure to develop) the common-law in accordance
with the spirit, purport and objects of the Bill of Rights;
(c) a statute that conflicts with a requirement or restriction imposed by the
Constitution;
42 Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) (2002 (5) BCLR 454; [2002] ZACC 4) at
para [32] and repeated by Skweyiya J In Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1;
[2006] ZACC 10) at para [123]. The whole para [32] by Ngcobo J reads:
“[32] For this Court to have jurisdiction, the applicant must bring his complaint within the Constitution.
Although this Court is the highest Court of appeal, its jurisdiction is nevertheless limited to cases
involving ‘constitutional matters, and issues connected with decisions on constitutional
matters’. [The original text of s 167(3)(b) of the Constitution.] Whether one can speak of a non-
constitutional issue in a constitutional democracy where the Constitution is the supreme law
and all law and conduct has to conform to the Constitution is not free from doubt. However, as
Judges who swore to uphold the Constitution, we must accept that such distinction exists and try to make
sense of that distinction. It is therefore necessary to determine whether the conduct of the SCA as
evidenced by these cases fell foul of the Constitution.”
43 C Lewis ‘Reaching the Pinnacle: Principles, Policies and People for a Single Apex Court in South Africa’
(2005) 21 South African Journal of Human Rights at 512. See also Fraser v Absa Bank Ltd (National
Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) at paras [36] to [40].
44 Makanyi v AngloGold Ashanti Ltd 2011 (3) SA 237 (CC) per Khampepe J at para [11] read with the
judgment of Van Der Westhuizen J in Fraser v Absa Bank Ltd (NDPP as Amicus Curiae) 2007 (3) SA 484
(CC) (2007 (3) BCLR 219; [2006] ZACC 24) at para [38]. See also General Council of the Bar of South
Africa v Jiba and Others ([2019] ZACC 23) (Jiba) at para [59] and section 167 of the Constitution, 1996.

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(d) the interpretation of a statute in accordance with the spirit, purport and objects
of the Bill of Rights (or the failure to do so);
(e) the erroneous interpretation or application of legislation that has been enacted
to give effect to a constitutional right or in compliance with the Legislature’s
constitutional responsibilities; or
(f) executive or administrative action that conflicts with a requirement or
restriction imposed by the Constitution.
The Constitutional Court has also ruled that the following are not accepted as
45
constitutional issues or matters:
(a) Appeals that challenge only factual findings;

46
(b) Appeals that challenge an incorrect application of the law by lower courts;
47
(c) Setting aside arbitration awards.
(d) The question of sentence will generally not be a constitutional matter and the
Court will not ordinarily entertain an appeal on sentence merely because there
was an irregularity. What must be shown is that there is also be a failure of
48
justice.
It is also clear that the determination whether a matter raises a constitutional issue is
49
difficult and spawns many dissenting judgments even in the Constitutional Court.
Remember that before 23 August 2013 the Constitutional Court was the final court
of appeal in constitutional matters while the Supreme Court of Appeal was the final
court of appeal concerning non-constitutional matters.
From 23 August 2013 the Constitutional Court became the final court of appeal on
both constitutional and non-constitutional matters. That is why the
50
Constitutional Court is now often referred to as the ‘apex court’.
The significance of the change from 23 August 2013 impacts on the jurisdiction of
the Constitutional Court.
45 Makanyi v AngloGold Ashanti Ltd 2011 (3) SA 237 (CC) per Khampepe J at para [12].
46 Buffalo City v Metgovis [2019] ZACC 9 at paras [31] and [35].
47 Lufuno Mphaphuli & Assoc (Pty) Ltd v Andrews 2009 (4) SA 529 (CC) at para [237].
48. Van der Walt v S [2020] ZACC 19 para [18] with reference to S v Bogaards [2012] ZACC 23; 2013
(1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC) at para 42.
49 For example, Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC) at para [91], and
Swart v Starbuck 2017 (5) SA 370 (CC) at para [75].
50 Jordaan v Tshwane Metropolitan Municipality 2017 (6) SA 287 (CC) (2017 (11) BCLR 1370;
[2017] ZACC 31) at paras [6] and [7].

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In order to bring a non-constitutional matter properly before the Constitutional Court,

one must establish that the matter concerns an arguable point of law of general public
importance, which the Constitutional Court ought to consider: section 167(3)(b)(ii) of
the Constitution, 1996.
What do constitutionality and constitutionalism mean?
Constitutionality means the quality of being in accordance with the constitution.
So, Ngcobo J said:

“Parties who challenge the constitutionality of a provision in a statute must raise the
constitutionality of the provisions sought to be challenged at the time they institute
legal proceedings. In addition, a party must place before the Court information
relevant to the determination of the constitutionality of the impugned provisions.
Similarly, a party seeking to justify a limitation of a constitutional right must place
before the Court information relevant to the issue of justification. I would emphasise
51
that all this information must be placed before the Court of first instance.”
Constitutionalism means the adherence to a constitution. The word carries the

sense that government must conduct itself within the limits of the powers given to the
government in terms of the constitution. “Simply put, the constitutionalism principle
52
requires that all government action comply with the Constitution.”
F. Jurisdiction
Jurisdiction in the context of law has three main meanings.
The first relates to the defined territory of a court.

The second ‘is the power or competence of a court to adjudicate on, determine
53
and dispose of a matter’.
The third is the most disturbing for legal practitioners: Jurisdiction is
54
determined on the pleadings and NOT on the substantive merits of the case.
51 Prince v President, Cape Law Society and Others 2001 (2) SA 388 (CC) at para [22].
52 State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) at para
[38]. See also Economic Freedom Fighters v Speaker, National Assembly 2016 (3) SA 580 (CC) (2016 (5)
BCLR 618; [2016] ZACC 11) at para [1]. For a critical comparison of constitutionalism bringing potential
uncertainty to contract law, see the article by Judge of Appeal Malcolm Wallis ‘Commercial Certainty and
Constitutionalism: Are They Compatible’ (2016) 133 SALJ 545.
53 Currie & De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 91; See also
Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC).
54 Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) para [75]. See also
Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC) at para [46] and Competition Commission
of South Africa v Pickfords Removals SA (Pty) Ltd 2021 (3) SA 1 (CC) at para [15].

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The need for proper pleadings is dealt with separately in the second part of the guide.
The other aspects of jurisdiction are dealt with now.
The Superior Courts Act 10 of 2013, in line with the Constitution, has consolidated and
rationalised the jurisdiction of our courts into an easy to understand framework.
Beginning with the Preamble, the Superior Courts Act sets out the hierarchy of the
courts, the location of the superior courts, and the structure and administration of the
superior courts.
So, let us begin with the Superior Courts Act.
Hierarchy of the courts
Section 166 of the Constitution provides that the courts are-

(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Court of South Africa;
(f) the Magistrates’ Courts; and
(g) any other court established or recognised in terms of an Act of
Parliament of a similar status to either the High Court or the Magistrates’
55
Courts;
The Constitutional Court, the Supreme Court of Appeal and the High Courts are
superior courts. We have noted above that since 21 November 2001 the Chief
Justice presides over the Constitutional Court and the President of the Supreme Court
56
of Appeal presides over the Supreme Court of Appeal (SCA).
The seat of the Constitutional Court is Johannesburg, while the seat of the SCA is
Bloemfontein. If it is ‘expedient or in the interests of justice’ to hold a hearing at a
place other than at the seat of the Court, the Chief Justice or the President of the
SCA may do so.
57
The High Court of South Africa consists of the following nine Divisions:
(a) Eastern Cape Division, with its main seat in Grahamstown.
(b) Free State Division, with its main seat in Bloemfontein.
(c) Gauteng Division, with its main seat in Pretoria.
55 Paraphrased from the Preamble to the Superior Courts Act 10 of 2013.
56 The Superior Courts Act confirms those changes in ss 4 and 5.

57 Section 6 of the High Court Act. s 6 must be read with s 50 and then with the Renaming of Courts:
Directive 3 of 2014. See the next page of the Guide.

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(d) KwaZulu-Natal Division, with its main seat in Pietermaritzburg.

(e) Limpopo Division, with its main seat in Polokwane.
(f) Mpumalanga Division, with its main seat in Nelspruit.
(g) Northern Cape Division, with its main seat in Kimberley.
(h) North West Division, with its main seat in Mahikeng.
(i) Western Cape Division, with its main seat in Cape Town.
On 28 February 2014, under the Renaming of Courts: Directive 3 of 2014, the

Chief Justice issued the following directive: “The [Superior Courts] Act created a
single High Court, with various divisions constituted in terms of s 6 of the Act. In this
regard all court processes in the High Court shall be headed in accordance with the
Act; and all court processes shall be as headed as follows: (emphasis added.)
(a) ‘IN THE HIGH COURT OF SOUTH AFRICA’ EASTERN CAPE DIVISION, GRAHAMSTOWN
(b) ‘IN THE HIGH COURT OF SOUTH AFRICA’ EASTERN CAPE LOCAL DIVISION, BHISHO
(c) ‘IN THE HIGH COURT OF SOUTH AFRICA’ EASTERN CAPE LOCAL DIVISION, MTHATHA
(d) ‘IN THE HIGH COURT OF SOUTH AFRICA’ EASTERN CAPE LOCAL DIVISION, PORT
ELIZABETH
(e) ‘IN THE HIGH COURT OF SOUTH AFRICA’ FREE STATE DIVISION, BLOEMFONTEIN
(f) ‘IN THE HIGH COURT OF SOUTH AFRICA’ GAUTENG DIVISION, PRETORIA
(g) ‘IN THE HIGH COURT OF SOUTH AFRICA’ GAUTENG LOCAL DIVISION, JOHANNESBURG
(h) ‘IN THE HIGH COURT OF SOUTH AFRICA’ GAUTENG DIVISION, PRETORIA (Functioning
as LIMPOPO DIVISION, POLOKWANE)
(i) ‘IN THE HIGH COURT OF SOUTH AFRICA’ GAUTENG DIVISION, PRETORIA (Functioning
as LIMPOPO LOCAL DIVISION, THOHOYANDOU)
(j) ‘IN THE HIGH COURT OF SOUTH AFRICA’ GAUTENG DIVISION, PRETORIA (Functioning
as MPUMALANGA DIVISION, NELSPRUIT)
(k) ‘IN THE HIGH COURT OF SOUTH AFRICA’ KWAZULU-NATAL DIVISION,

PIETERMARITZBURG
(l) ‘IN THE HIGH COURT OF SOUTH AFRICA’ KWAZULU-NATAL LOCAL DIVISION, DURBAN
(m) ‘IN THE HIGH COURT OF SOUTH AFRICA’ NORTHERN CAPE DIVISION, KIMBERLEY
(n) ‘IN THE HIGH COURT OF SOUTH AFRICA’ NORTH WEST DIVISION, MAHIKENG
(o) ‘IN THE HIGH COURT OF SOUTH AFRICA’ WESTERN CAPE DIVISION, CAPE TOWN.”
Renaming of Courts: Directive 3 of 2014 ended the names of the “North Gauteng
High Court” and “South Gauteng High Court” for the High Courts in Pretoria and
Johannesburg respectively.

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Remember to keep your pleadings and notices in line with Directive 3 of

2014.
On 15 January 2016, with effect from 25 January 2016, the Minister of Justice and
Correctional Services established Lephalale as a local seat and confirmed
Thohoyandou as a local seat of the Limpopo Division of the High Court of South Africa,
and on 25 January 2016 the Gauteng Division of the High Court ended functioning as
the Limpopo Division and the Limpopo Division of the High Court, sitting at
Polokwane, became a division of its own.
More recently, on 26 April 2019 a local seat of the Mpumalanga Division of the High
Court of South Africa was established for Middleburg and the Mpumalanga Division of
the High Court was confirmed for Mbombela. The latter commenced proceedings from
13 May 2019.
The current list of Divisions of the High Court of South Africa is as follows:
(a) Eastern Cape Division, Grahamstown
(b) Eastern Cape Local Division, Bhisho
(c) Eastern Cape Local Division, Mthatha
(d) Eastern Cape Local Division, Port Elizabeth
(e) Free State Division, Bloemfontein
(f) Gauteng Division, Pretoria
(g) Gauteng Local Division, Johannesburg
(h) Limpopo Division, Polokwane
(i) Limpopo Local Division, Thohoyandou
(j) Mpumalanga Division, Mbombela (Nelspruit)
(k) Kwazulu-Natal Division, Pietermaritzburg
(l) Kwazulu-Natal Local Division, Durban
(m) Northern Cape Division, Kimberley
(n) North West Division, Mahikeng
(o) Western Cape Division, Cape Town.
However, see the comments about court Divisions in The Standard Bank of SA Ltd v
Thobejane (38/2019 & 47/2019) and The Standard Bank of SA Ltd v Gqirana N O and
Another (999/2019) [2021] ZASCA 92 (25 June 2021) at para [4].
Courts of similar status to the High Court are the Electoral Court, the Land Claims
58
Court, the Labour Court and the Competition Appeal Court.
58 PSA obo Ubogu v Head, Department of Health, Gauteng 2018 (2) SA 365 (CC): See also s 18 of the
Electoral Commission Act 51 of 1996, ss 151 and 167 of the Labour Relations Act 66 of 1995; s 36 of the
Competition Act 89 of 1998; and s 22 of the Restitution of Land Rights Act 22 of 1994.

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All the changes made to the Divisions of the High Court under the Superior Courts
Act have their origin in s 169(2) of the Constitution, to wit: ‘The High Court of South
Africa consists of the Divisions determined by an Act of Parliament.’
Key jurisdiction concerning constitutional issues
The definition of a Superior Court in the Superior Courts Act echoes section 170 of
the Constitution, thus:
“‘Superior Court’ means the Constitutional Court, the Supreme Court of
Appeal, the High Court and any court of a status similar to the High Court.”
Section 170 of the Constitution provides:

“All courts other than those referred to in ss 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.” (Emphasis
added.)
In other words, only a Superior Court may enquire into or rule on the
constitutionality of any legislation or any conduct of the President.
Remember the Superior Courts are

Section 167: Constitutional Court
Section 168: Supreme Court of Appeal
Section 169: High Court of South Africa
Section 166(e): court of status of a High Court of South Africa
There are two final issues to consider about jurisdiction.
What are the essential aspects of constitutional law jurisdiction in ss 167, 168 and
169 of the Constitution?
And how do constitutional cases reach the Constitutional Court?
Essential aspects of constitutional law jurisdiction in

section 167 of the Constitution.
The jurisdiction of the Constitutional Court is detailed in s 167(3) to 167(7). The

following is a summary of those subsections. You will need to check whether you are
satisfied with the summary. That way you get to read section 167 again.

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Summary of the Constitutional Court jurisdiction
1. The Constitutional Court may decide constitutional matters.
2. The Constitutional Court may decide a non-constitutional matter, if it grants leave to

appeal on the grounds that the matter raises an arguable point of law of general
public importance which it ought to consider.
3. Only the Constitutional Court may-
(a) decide disputes between organs of state in the national or provincial sphere
concerning the constitutional status, powers or functions of any of those
organs of state;
(b) decide on the constitutionality of any parliamentary or provincial Bill.

However, the threshold procedure of both types of Bill is that the
President or the Premier must give the National Assembly or Provincial
Legislature a chance to accommodate their reservations. If the President
or Premier is not happy with the proposed changes, then the matter is
ripe to go to the Constitutional Court.
(c) decide applications from members of the National Assembly to declare an Act
of Parliament unconstitutional or from members of the provincial legislature to
declare a provincial act unconstitutional;
Again, there is a threshold requirement before the matter is ripe
to be heard: at least one-third of the members of the National
Assembly and 20% of the members provincial legislature must support
the application.
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a constitutional
obligation; or
(f) certify a provincial constitution in terms of section 144.
The only certification is the Constitution of the Western Cape 1 of
1998.
4. The Constitutional Court makes the final decision whether an Act of Parliament, a
provincial Act or conduct of the President is constitutional.
5. The Constitutional Court confirms any order of invalidity made by the Supreme Court
of Appeal, the High Court of South Africa, or a court of similar status, before that
order has any force.
6. Constitutional Court Rule 18 allows a person, when it is in the interests of justice and
with leave of the Court to bring a matter directly to the Constitutional Court.
7. Constitutional Court Rule 19 allows a person, when it is in the interests of justice and
with leave of the Court to appeal directly to the Constitutional Court from any
other court.
A constitutional matter includes any issue involving the interpretation,
protection or enforcement of the Constitution.

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Jurisdiction and leave to appeal
Section 167(3) of the Constitution reads:
“The Constitutional Court—

(a) is the highest court of the Republic; and
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raise an arguable point of law of
general public importance which ought to be considered by that
Court, and
(c) makes the final decision whether a matter is within its jurisdiction.”
With reference to the meaning of the words: “…the matter raises an arguable point of
law of general public importance …”, it was stated in the Constitutional Court that
“The notion that a point of law is arguable entails some degree of merit in the
argument. Although the argument need not, of necessity, be convincing at this stage,
it must have a measure of plausibility... [T]he word ‘arguable’ is used ‘in the sense
that there is substance in the argument advanced’.” 59
More recently the Constitutional Court in Big G Restaurants (Pty) Limited v

Commissioner for the South African Revenue Service 2020 (6) SA 1 (CC) per
MADLANGA J (Jafta J, Khampepe J, Mhlantla J, Theron J, Tshiqi J and Victor AJ
concurring) held with reference to the Paulsen case, that the interpretative question to
the terms of a franchise contract was ‘a quintessential point of law’ as it added to ‘the
legal character of the question to be determined’. 60
The Court regarded the uniqueness of the Spur Group’s franchise agreement
and the effect an interpretation thereof would have on the franchisees
throughout South Africa as ‘of import and interest of a significant part of the
general public’. 61
The Constitutional Court also holds the prospect of success as a factor when the Court
considers leave to appeal. Prospects of success serve as a precursor to determining
whether the interests of justice warrant the grant of leave to appeal. 62
59 Paulsen v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) at para [21]. See also Maledu v
Itereleng Bakgatla Mineral Resources (Pty) Ltd 2019 (2) SA 1 (CC) at para [31].
60 Big G Restaurants (Pty) Limited v Commissioner for the SARS 2020 (6) SA 1 (CC) at para [11].
61 Id para [14].
62 Telkom SA SOC Limited v City of Cape Town and Another 2021 (1) SA 1 (CC) at para [20] with reference to GCB
of SA v Jiba and Others 2019 (8) BCLR 919 (CC) ([2019] ZACC 23) (Jiba) at para [35].

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In Pickford’s case the novelty, and complexity of the arguments and the fact that the
interpretation of s 67 (1) of the Competition Act 89 of 1998 has a material effect on
the rights of the Commission and members of the public to access the courts are of
critical public importance and may well determine the prospect of success. 63
Direct Appeal to the Constitutional
In Economic Freedom Fighters v Gordhan and Other Public Protector and

Another v Gordhan and Others 2020 (6) SA 325 (CC) the Constitutional Court held
that ‘this Court holds a special place in the appellate hierarchy as a super appellate
court, and therefore it offers litigants the opportunity of a super-appeal. But, held the
Court, not all litigants who knock on this Court’s doors will be given the opportunity to
argue their case, either orally or in writing. The Court is directed by the Constitution
64
as to which matters should be adjudicated by the Court.’
‘Although there may be constitutional issues at play …, this does not automatically
mean that leave to appeal must be granted. To this end, this court enjoys the
discretion to decide whether to grant leave to appeal. The criterion is whether it would
65
be in the interests of justice to grant leave to appeal’.
The interests of justice
“[51] Accordingly, in determining what the interests of justice demand, a court must
have regard to, and carefully weigh, all relevant circumstances and factors.
Undoubtedly, the relevant factors will differ based on the facts of each case. These
non-exhaustive factors include:
(a) The kind and importance of the constitutional issue raised;

(b) the potential for irreparable harm if leave is not granted;
(c) whether the interim order has a final effect or disposes of a substantial portion
of the relief sought in a pending review;
(d) whether there are prospects of success in the pending review;
(e) whether, in deciding an appeal against an interim order, the appellate court
would usurp the role of the review court;
(f) whether interim relief would unduly trespass on the exclusive terrain of the
other branches of government, before the final determination of the review
grounds; and
63 Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC) at
paras [16] to [18]. See the further elaboration of this approach in Road Traffic Management Corporation v
Tasima (Pty) Ltd 2021 (1) SA 589 (CC) at para [25] with reference to SATAWU v Garvas [2012] ZACC 13; 2013
(1) SA 83 (CC); 2012 (8) BCLR 840 (CC) at para 33 and De Reuck v Director of Public Prosecutions,
Witwatersrand Local Division [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) at paras 3-4.
64 Economic Freedom Fighters v Gordhan and Others 2020 (6) SA 325 (CC) at para [30].
65 Economic Freedom Fighters v Gordhan and Others at para [45].

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(g) whether allowing the appeal would lead to piecemeal adjudication and prolong
the litigation or lead to the wasteful use of judicial resources or legal costs.”
(Footnotes omitted.) 66
However, to advance a new case on a different basis and on issues not advanced in
the High Court and Supreme Court of Appeal under the guise of interests of justice,
the Constitutional Court warned, is not acceptable. This is especially so where
respondents have not had an opportunity to present their case and will be prejudiced
by an applicant’s stance and where there are no exceptional circumstances to warrant
67
the Court to hear such issues as a court of first and last instance.
Summary of the constitutional jurisdiction of the SCA and the High Court in
ss 168 and 169 of the Constitution
1. The Supreme Court of Appeal (SCA) may decide appeals in matters from the
High Court of South Africa and courts of similar status.
2. But the SCA may not decide appeals in labour or competition matters.
3. The SCA may decide only
(i) appeals;
(ii) issues connected with appeals; and
(iii) any other matter referred to it by an Act of Parliament.
1. The High Court of South Africa may decide any constitutional matter; except
a constitutional matter that-
(i) the Constitutional Court has agreed to hear under direct access; or
(ii) is assigned by an Act of Parliament to another court of a similar status
2. The High Court of South Africa may decide any other matter not assigned to
another court by an Act of Parliament.
How do constitutional cases reach the Constitutional Court?
The ways of getting to the Constitutional Court depend on the type of litigation
practice you have and the needs of your clients. Traditionally one assumes there are
four main ways to get to the Constitutional Court (appeals, direct access, review of
Bills or Acts of Parliament and confirmation proceedings).
66 Economic Freedom Fighters v Gordhan and Others, op cit, at para [51].

67 A M v H M [2020] ZACC 9 at para [38].

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But, if one takes account of the full scope of constitutional matters, there are at least
eleven discrete ways in which your client may end up before the Constitutional Court.
The eleven ways are listed below.
Of the eleven ways, the ways most used are addressed in more
detail in the second part of the guide – under the Basic Template.
Eleven discrete ways in which your client may arrive or end up in

the Constitutional Court
1. An Appeal on a constitutional issue from the SCA: Rule 19

2. An Appeal on a non-constitutional issue from the SCA: Rule 19
3. In a Confirmation of an order of constitutional invalidity: Rule 16
4. In the Certification of a provincial constitution: Rule 17
5. In the Referral of a Bill from the President or a Premier of a Province: Rule 14
6. In the Constitutionality of an Act: Rule 15
The matter may come from the National Assembly or a Provincial
Legislature as your client.
7. An application for Direct access to the Constitutional Court: Rule 18
8. An application for Joinder by or against your client as an organ of state: Rule 5
The Uniform Rules of Court require joinder to be done under Rule 10A
when a matter starts in the High Court.
9. An urgent application: Rule 12
10. An application to Intervene in a matter before the Constitutional Court: Rule 8
11. An application to be admitted as an amicus curiae: Rule 10
The Uniform Rules of Court require the application to be admitted as an
amicus curiae to be done under Rule 16A when a matter starts in the
High Court.
G. Justiciable and justiciability

Justiciable means capable of being determined by a court of law. Sometimes
justiciable is said to mean subject to trial in a court of law. But whichever definition
you prefer, something that is justiciable must be able to be decided by legal
principles.
Justiciability contains the meaning of justiciable but adds a limitation. The limitation is
a necessary – prerequisite of a matter put to a court of law for resolution; that an
actual and substantial controversy be at hand.
There are four important considerations about a matter being justiciable.

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First, do the parties have standing?

Second, is the matter ripe for hearing?
Third, is the matter moot?
Fourth, is the matter a real case with an actual dispute?
First, do the parties have standing?
Standing, or locus standi in judicio, requires a party to ‘have an adequate interest

in the subject matter of the litigation, usually described as a direct interest in the
relief sought; the interest must not be too remote; the interest must be actual, not
abstract or academic; and it must be a current interest and not a hypothetical one.
The duty to allege and prove locus standi rests on the party instituting the
68
proceedings.’
Second, is the matter ripe for hearing?
There are a several considerations concerning ripeness. First, sometimes ripeness and
mootness are used as synonyms (interchangeably). But that is not helpful. Second, the
69
better way to explain the difference between ripe and moot is from Chaskalson et al.
“While the “ripeness” doctrine is concerned with cases which are brought
too early, the “mootness” doctrine is relevant to cases which are brought, or
reach the hearing stage, too late, at a time when the issues are no longer
70
“live”.
If a matter has been delayed and no condonation is sought, then the matter is not
ripe for hearing. So, for example a matter where the applicant or plaintiff may have
failed to comply with a directive could also be treated as not ripe for hearing.
In the case of National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para [21],
Ackermann J said:
“Although, in the High Court, the question of mootness was also raised by the
respondents, there has been no appeal against the High Court’s dismissal of
this argument. While the concept of ripeness is not precisely defined, it
embraces a general principle that where it is possible to decide any case, civil
68 Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) at para [7].
69 M Chaskalson et al 'Constitutional Litigation' in S Woolman & M Bishop (eds) Constitutional Law of

South Africa 2 ed at 8-15.
70 National Coalition for Gay & Lesbian Equality v Min of Home Affairs 1999 (3) SA 173 (C) at page 182 A-C.

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or criminal, without reaching a constitutional issue, that is the course which

should be followed.”
Ackermann J referred to S v Mhlungu 1995 (3) SA 867 (CC) at para [59].
Now, as is explained again in the second part of the guide, S v Mhlungu on the
principle of constitutional avoidance, is no longer our law. See Jordaan v
Tshwane Metropolitan Municipality 2017 (6) SA 287 (CC) at para [8].
The last and most important aspect of ripeness is whether the litigant exhausted all
available remedies before approaching the court. For example, one must first engage
all the rights of a requester under the Promotion of Access to Information Act 2 of
2000, before one may approach the court for an order for access to information.
Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 is quite clear
71
that internal remedies must be exhausted.
Third, is the matter moot?
72
A matter will be moot when there is no longer a live dispute. The rationale for not
entertaining a matter that is moot, has been explained as follows by the Constitutional
Court, namely ‘courts exist to determine concrete legal disputes and their scarce
resources should not be frittered away by entertaining abstract propositions of law,
however engaging. Typically, this Court will not adjudicate an appeal if it no longer
presents an existing or live controversy, and will refrain from giving advisory opinions
on legal questions which are merely abstract, academic or hypothetical and have no
73
immediate practical effect or result’. The classic case for a lack of a live dispute
concerned the repeal of legislation and its replacement by a new Act of Parliament
74
before the hearing on the old legislation.
However, just when one thought that no live issue makes a matter moot,
remember the following.
In POPCRU v SACOSWU 2019 (1) SA 73 (CC), Jafta J (Zondo DCJ, Dlodlo AJ,
Goliath AJ, Khampepe J, Madlanga J and Petse AJ concurring) said at para [73]:
71 Gavric v Refugee Status Determination Officer 2019 (1) SA 21 (CC) at para [134]. Section 7(2)(a) of
PAJA reads: “Subject to paragraph (c), no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any other law has first been exhausted.”
72 Tjiroze v Appeal Board of the Financial Services Board [2020] ZACC 18 para [20] with reference to
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at fn 18.
73 AB and Another v Pridwin Preparatory School and Others 2020 (5) SA 327 (CC) at para [50].
74 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security1997 (3) SA 514 (CC) para [17].

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“This Court has a discretion to decide issues on appeal even if they no longer present
existing or live controversies. That discretion must be exercised according to what the
interests of justice require. A prerequisite for the exercise of the discretion is that any
order which this court may make will have some practical effect either on the parties
75
or on others.” The emphasis is on matters that have a public interest even after
the ‘live controversy’ between the parties themselves is over.
In AB and Another v Pridwin Preparatory School and Others 2020 (5) SA 327
(CC) Nicholls AJ (Mogoeng CJ, Cameron J and Froneman J concurring) stated at para
[51] that: “mootness is not an absolute bar to deciding an issue … the question is
whether the interests of justice require that it be decided. In class actions or public
interest litigation, the decisions pertaining to the rights contained in the Bill of Rights
76
can have a far-reaching practical effect on many others”.
Fourth, is the matter a real case with an actual dispute?
The case must be between litigants genuinely at odds on some issue. It cannot be a
77
pretend case where the parties simply seek an advisory opinion or worse, to
make precedent for their own self-serving interests.
H. Interpretation
The starting point for interpreting the Constitution and any legislation from any
sphere of government is s 39.
39 Interpretation of Bill of Rights

1. When interpreting the Bill of Rights, a court, tribunal or forum-
(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
2. When interpreting any legislation, and when developing the common law 78 or
customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.
75 Citing Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para [11].
See also Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) at paras [9] and [10] and Van Wyk v
Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) at para [29].
76 AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12 para [51] with reference to Sebola
v Standard Bank of South Africa Ltd 2012 (5) SA 142 (CC) at para [32].
77 Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) at para [54].

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3. The Bill of Rights does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation, to the extent
that they are consistent with the Bill.
There are seven steps to the proper interpretation of legislation (statutes, bylaws
and regulations) in South Africa. 79
First, when interpreting any legislation all courts, tribunals or forums (fora was the
Latin plural in the past) must promote the spirit, purport (meaning the sense) and
objects of the Bill of Rights.
Second, the court must construe (meaning interpret) any legislation in a manner
consistent with the Constitution.
Third, the cardinal rule (meaning a very important rule) of interpretation is that the
ordinary meaning of the words in a statute need to be interpreted in the context of
the statute in its entirety and its apparent purpose. This rule also applies to the
interpretation of contracts. 80
Fourth, the purpose of remedial legislation plays a critical role in the interpretation of
such a statute.
An example of remedial legislation is the Restitution of Land Rights Act 22 of 1994. It
is called remedial legislation because the purpose of the Act is to provide for the
restitution of rights in land to persons or communities dispossessed of such rights
after 19 June 1913 as a result of past racially discriminatory laws. So, the purpose is
based on the social and historical background to the legislation.
Fifth, when there is an apparent conflict between national and provincial legislation,
the Constitution requires that every court must prefer any reasonable interpretation of
the legislation or constitution that avoids a conflict, over any alternative interpretation
that results in a conflict. 81
Sixth, the Constitution also requires every court to prefer any reasonable
interpretation of legislation that is consistent with international law over any
alternative interpretation that is inconsistent with international law. 82
Finally, in Schedule 6 of the Transitional Arrangements, the Constitution sets out the
rules to interpret ‘any remaining old order legislation’ that existed before the
Constitution took effect on 4 February 1997 as follows:
78 The leading case for the develop the common law is Carmichele v Minister of Safety and Security and
Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC). Development of the
common law is dealt with below under remedies.
79 Maledu v Itereleng Bakgatla Mineral Resources (Pty) Ltd 2019 (2) SA 1 (CC) at paras [44] and [45];
National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng
Africa (Pty) Ltd) and Another 2020 ZACC 23.
80 See the move from text to context set out clearly by Wallis JA in Natal Joint Municipal Pension Fund
v Endumeni Municipality 2012 (4) SA 593 (SCA) at paras [18] and [19], cited with approval in Cloete and
Another v S and A Similar Application 2019 (4) SA 268 (CC) at para [28].
81 See s 150 Interpretation of conflicts of the Constitution.
82 See s 233 Application of international law.

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3 Interpretation of existing legislation

(1) Unless inconsistent with the context or clearly inappropriate, a reference in any
legislation that existed when the new Constitution took effect-
(a) to the Republic of South Africa or a homeland (except when it refers to a
territorial area), must be construed as a reference to the Republic of South
Africa under the new Constitution;
(b) to Parliament, the National Assembly or the Senate, must be construed as a
reference to Parliament, the National Assembly or the National Council of
Provinces under the new Constitution;
(c) to the President, an Executive Deputy President, a Minister, a Deputy Minister
or the Cabinet, must be construed as a reference to the President, the Deputy
President, a Minister, a Deputy Minister or the Cabinet under the new
Constitution, subject to item 9 of this Schedule;
(d) to the President of the Senate, must be construed as a reference to the
Chairperson of the National Council of Provinces;
(e) to a provincial legislature, Premier, Executive Council or member of an
Executive Council of a province, must be construed as a reference to a
provincial legislature, Premier, Executive Council or member of an Executive
Council under the new Constitution, subject to item 12 of this Schedule; or
(f) to an official language or languages, must be construed as a reference to any of
the official languages under the new Constitution.
(2) Unless inconsistent with the context or clearly inappropriate, a reference in any
remaining old order legislation-
(a) to a Parliament, a House of a Parliament or a legislative assembly or body of
the Republic or of a homeland, must be construed as a reference to-
(i) Parliament under the new Constitution, if the administration of that
legislation has been allocated or assigned in terms of the previous
Constitution or this Schedule to the national executive; or
(ii) the provincial legislature of a province, if the administration of that
Constitution or this Schedule to a provincial executive; or
(b) to a State President, Chief Minister, Administrator or other chief executive,
Cabinet, Ministers’ Council or executive council of the Republic or of a
homeland, must be construed as a reference to-
(i) the President under the new Constitution, if the administration of that
Constitution or this Schedule to the national executive; or
(ii) the Premier of a province under the new Constitution, if the
administration of that legislation has been allocated or assigned in terms
of the previous Constitution or this Schedule to a provincial executive.

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The use of interpretative tools – like reading-in, reading-down and

severance – is dealt with below under remedies.
I. The rule of law and the principle of legality

The rule of law is a concept of universal validity. 83 It has many different shades of
meaning depending how it is used. Now, without going into intense academic
discussions about the rule of law, this guide sets out a basic template for you, as
candidate legal practitioners to use, adopt and adapt for the future.
You already know that the concept of the rule of law is vast: it even includes the
principle of legality. 84 In this guide the principle of legality is mainly dealt with under
administrative decisions and PAJA.
In our Constitution the rule of law appears at s 1(c) of Chapter 1: Founding

Provisions
1. Republic of South Africa

The Republic of South Africa is one, sovereign, democratic state founded on the
following values:
(a) Human dignity, the achievement of equality and the advancement of human
rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability,
responsiveness and openness.
(Emphasis added.)
The phrase “supremacy of the constitution and the rule of law” combines the
supremacy of the constitution with the rule of law. The concepts both work together.
In practical terms it means that a lot of concepts used in constitutional law overlap.
While initially the overlapping concepts might cause some confusion, the aim in this
guide is to set out the scope of the rule of law. Then, whenever one is examining the
facts of a case, different aspects of the rule of law are easier to identify.
SO, WHAT DOES THE RULE OF LAW MEAN?
The Venice Commission of the Council of Europe defined the rule of law using a
definition from the late Lord Bingham as follows: 85
83 The rule of law checklist – Venice Commission of the Council of Europe, Strasbourg 18 March 2016.
84 Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) at para [49],
confirmed in LSSA v President of the Republic of South Africa 2019 (3) SA 30 (CC) at para [61].

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“All persons and authorities within the State, whether public or private, should
be bound by and entitled to the benefit of laws publicly made, taking effect
(generally) in the future and publicly administered in the courts”.
In De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) at para [46]
Ackermann J said: 86
“Government according to the rule of law means that ... the relevant laws shall
take the form of pre-announced, general, durable and reasonable precise
rules administered by regular courts or similar independent tribunals
according to fair procedures.”
The Venice Commission divided the rule of law into five main categories. Of course,
you are not bound to agree with the categories. However, the categories below are a
useful tool which you may adopt and adapt.
(a) Legality
(b) Legal certainty
(c) Prevention of abuse of power
(d) Equality before the law and non-discrimination
(e) Access to justice and a fair trial
(a) Legality
In the context of South Africa, legality means the supremacy of the Constitution and
the rule of law. The doctrine (principle) of legality is an incident of the rule of law. 87
The concept of legality requires the exercise of public power at any branch of
government and at every sphere of government to comply with the Constitution.
The branches of government – legislative, executive and judicial – must act as

independently as possible according to the separation of powers dealt with above.
The spheres of government – national, provincial and local and all organs of state –
must respect the constitutional status, institutions, powers and functions of
government in the other spheres and exercise their powers and perform their
functions in a manner that does not encroach on another sphere, but must perform
the above functions in a manner of mutual trust and good faith and assist
and support one another. 88
85 The rule of law checklist – Venice Commission of the Council of Europe, Strasbourg 18 March 2016 at
page 7, paragraph 17.
86 Quoting from Mathews Freedom, State Security and the Rule of Law (Sweet and Maxwell, London,
1988) at 20.
87 LSSA v President of the Republic of South Africa 2019 (3) SA 30 (CC) at para [47].
88 See s 41 Principles of co-operative government and intergovernmental relations of the
Constitution.

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You will note the different approach required between branches and spheres of
government. In future you may have many cases in which you will need to explain the
different approaches.
(b) Legal certainty

Laws should be of general application. 89
Laws should be rational and suited for purpose. 90
Laws should be clear and ascertainable, 91 not vague and overbroad. 92
Laws should be published, and people given fair notice of the laws. 93
94
Laws should not give powers of wide discretion, unless guidelines are enacted in the law.
Laws should not be retrospective. 95
Laws should not be arbitrary. 96
(c) Prevention of abuse of power

The Venice Commission focussed the prevention of abuse of power mainly on
administrative and executive action. However, the rule applies in South Africa to both
legislative and administrative power. In Affordable Medicines Trust v Minister of
Health 2006 (3) SA 247 (CC), Ncgobo J said the following of both:
“[74] The exercise of all legislative power is subject to at least two constitutional
constraints. The first is that there must be a rational connection between the
legislation and the achievement of a legitimate government purpose. …”
“[76] The other constitutional constraint is the Bill of Rights. Legislation must not
infringe any of the fundamental rights enshrined in the Bill of Rights.”
AND
89 President of the RSA v Hugo 1997 (4) SA 1 (CC) at para [102] Mokgoro J said: “The need for
accessibility, precision and general application flow from the concept of the rule of law. A person should
be able to know of the law, and be able to conform his or her conduct to the law. Further, laws should
apply generally, rather than targeting specific individuals.”
90 New National Party of SA v Government of the Republic of SA 1999 (3) SA 191 (CC) at para [24]
Yacoob J said: “Decisions as to the reasonableness of statutory provisions are ordinarily matters within
the exclusive competence of Parliament. This is fundamental to the doctrine of separation of powers and
to the role of Courts in a democratic society. Courts do not review provisions of Acts of Parliament on the
grounds that they are unreasonable. They will do so only if they are satisfied that the legislation is not
rationally connected to a legitimate government purpose. In such circumstances, review is competent
because the legislation is arbitrary. Arbitrariness is inconsistent with the rule of law which is a core value
of the Constitution.”
See also Gihwala v Grancy Property Ltd 2017 (2) SA 337 (SCA) at para [145].
91 Beadica 231 CC v Trustees, Oregon Trust 2020 (5) SA 247 (CC) at para [81].
92 Affordable Medicines Trust v Minister Of Health 2006 (3) SA 247 (CC) at para [34].
93 Min of Health NO v New Clicks SA (Pty) Ltd (TAC Amici Curiae) 2006 (2) SA 311 (CC) at para [20].
94 Janse van Rensburg NO v Minister of Trade and Industry 2001 (1) SA 29 (CC) in paras [24] - [25].
95 Kaknis v ABSA Bank Ltd 2017 (4) SA 17 (SCA) at paras [28] – [29], Veldman v DPP, WLD 2007 (3)
SA 210 (CC) at paras [38] to [39].
96 City of Jhb Metropolitan Municipality v Blue Moonlight Prop 39 (Pty) Ltd 2011 (4) SA 337 (SCA) at
paras [62] to [64], and S v Makwanyane 1995 (3) SA 319 (CC) at para [156].

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“[75] The same is true of the exercise of public power by members of the Executive
and other functionaries. The Constitution places ‘significant constraints upon the
exercise of public power through the bill of rights and the founding principle
enshrining the rule of law’.”
(d) Equality before the law and non-discrimination

The Venice Commission focussed on ensuring that the law apply equally to everyone
and that where the rule of equality is not followed, there must be a rational reason
why. Our law applies the same principle. 97
Nowadays, equality before the law means two further concepts of profound importance.
First, the law itself must comply with Human Rights as generally accepted
internationally today. So, for example, even though the laws in South Africa during
apartheid were pre-announced, general, durable and reasonably precise rules
administered by regular courts, such laws can never qualify as being in accordance
with the rule of law.
Second, the rule of law requires a democracy as its essential base. As stated in the
Venice Commission report, 98 democracy relates to the involvement of the people in
the decision-making process in a society.
Without a functioning democracy no ruler has the

necessary legitimacy to claim adherence to the rule of law
(e) Access to justice and a fair trial

The Venice Commission highlighted the following aspects of the rule of law: the
independence of the judiciary, the autonomy and independence of the prosecution
service, the independence and impartiality of the legal profession: under fair trial –
access to justice, presumption of innocence and due process: 99 and, under
constitutional justice, constitutional reviews of administrative acts and decisions. See
the exercises in the guide for access to justice issues.
100
Finally, an independent judiciary is vital for a constitutional democracy.
97 Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South

Africa 2000 (2) SA 674 (CC) at paras [84] to [86].
98 “The Rule of Law can only flourish in a country whose inhabitants feel collectively responsible for the
implementation of the concept, making it an integral part of their own legal, political and social culture.”
Venice Commission report, op cit. at page 10, paragraph 43.
99 Section 35 Arrested, detained and accused persons in the Bill of Rights of our Constitution sets
out due process rights in detail.
100 In 1998 Malcolm, Chief Justice of Western Australia, delivered a speech on the independence of the
Judiciary. It was reported in Advocate vol 17 No 2 August 2004. Among many things, Malcolm CJ said:
“A strong, independent judiciary forms the foundation of representative democracy and observance of the
rule of law and human rights. [However] it is primarily the confidence of the community in the legal
system which encourages observance of the law.”

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On 13 September 2019 Chief Justice Mogoeng criticised unsubstantiated allegations of

corruption against the judiciary. You may face such allegations in practice one day.
Those allegations often come from disgruntled loosing litigants or people promoting
political propaganda. Make sure your clients stick to the facts. Focus on the facts.
Keep polemic out of your practice: it is a sound professional approach. 101
J. Administrative actions, decisions and PAJA

Section 33 of the Constitution establishes the right of everyone to lawful, reasonable
and procedurally fair administrative action.
33 Just administrative action

(1) Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the
right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must-
(a) provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and
(2); and
(c) promote an efficient administration.
The Promotion of Administrative Justice Act 3 of 2000 (PAJA) defines both an

‘administrative action’ and an [administrative] ‘decision’ in section 1. For the sake of
simplicity an administrative action means a decision taken by an organ of state when
exercising any powers under the Constitution performing any public power or function
in terms of any legislation.
More importantly, an administrative action includes a failure to

make any decision or to perform any power or function.
Furthermore, apart from the exclusions in the definition of administrative action, a

natural or a juristic person – that is not an organ of state – will be subject to PAJA
when performing a public power or function.
The test of a public power or function is ‘whether the exercise of the power or
the performance of the function might properly be said to entail public
accountability, and ... accountability to the public is what judicial review has
always been about’. 102
101 Consider The Ethics of the Hopeless Case by Judge Owen Rogers in The Advocate – December 2017.
102 Per Nugent JA in Calibre Clinical Consultants (Pty) Ltd v National Bargaining Council for the Road
Freight Industry 2010 (5) SA 457 (SCA) para [40].

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The primary role played by courts in relation to administrative action is to ensure that
the Constitution is followed by administrative functionaries when they exercise public
power. 103
‘Once an administrative task is completed, it is then for the court to perform its review
responsibility, to ensure that the administrative action or decision has been performed
or taken in compliance with the relevant constitutional and other legal standards.’ 104
Common law reviews of administrative decisions have been part of our law for more
than a century. 105 Rule 53 of the Uniform Rules of Court is the practical manner of
starting such a review. Now, since 30 November 2000 most reviews are brought
under PAJA and its regulations. However, on 4 November 2019 the Promotion of
Access to Information Rules published under Government Notice R965 of 9 October
2009 were repealed. Those rules had also been applicable to PAJA. See GN R1284a in
GG 42740 of 4 October 2019.
In 2018 an organ of state sought to review its own administrative decision

saying the decision was wrong. 106 Should the organ of state apply under
PAJA or under the common law review?
In short, the Constitutional Court held that an organ of state could not use PAJA to
review its own administrative decisions. However, it could use common law review
under the principle of legality. 107
The most comprehensive explanation of recent law relating to reviews comes from a
judgment by Unterhalter J, as follows: 108
“Judicial review under the principle of legality has come to assume an ever-greater
significance in our public law. …
First, the principle of legality is of application in the exercise of all public power. The
exercise of a power that is not administrative action falls under the discipline of the
principle of legality....
Second, the range and intensity of review permitted by the principle of legality has
enjoyed some expansion by way of judicial interpretation. Central to the principle of
103 Per Theron (Mogoeng CJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J and Petse AJ concurring)
in Gavric v Refugee Status Determination Officer 2019 (1) SA 21 (CC) at para [145].
104 Koyabe v Minister for Home Affairs (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327
(CC) (2009 (12) BCLR 1192; [2009] ZACC 23) at [36].
105 Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council 1903 TS 111 at 116;
and Nel & Another NNO v The Master (ABSA Bank Ltd and Others Intervening) 2005 (1) SA 276 (SCA)
paras [22] to [24], cited in Hunter v Financial Sector Conduct Authority 2018 (6) SA 348 (CC) at [39].
106 State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC).
107 See also Pretorius v Transport Pension Fund 2019 (2) SA 37 (CC) at paras [37] and [38].
108 ACSA v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ) at paras [5] to [16].

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legality are the requirements that for a public power to be exercised lawfully it may
not be exercised ultra vires; the holder of the power must act in good faith and must
not have misconstrued the power conferred; nor may the power be exercised
arbitrarily or irrationally.”
K. Rationality and reasonableness

Rationality and reasonableness are related but different. Here are some basic rules of
rationality and reasonableness which will assist you later when giving advice to clients
and when assessing whether a matter should go on review. 109
First, the executive and the administration may not exercise any power and perform
any function unless that power is validly conferred by law.
Second, that power must not be misconstrued (meaning misunderstood by the

person performing the function).
Third, the decision must be rationally related to the purpose for which the power was
conferred. Otherwise the exercise of power is arbitrary and at odds with the
Constitution.
Fourth, the reasonableness test and the rationality test are different tests.
An administrative decision is reviewable if it is one that a reasonable decision-maker

could not reach. The executive has a range of choices to select the way to do its job.
A court will not review the means if the judge would have done the job differently if
the means chosen are reasonable.
However, where the decision is challenged on the grounds of rationality, courts are
obliged to examine the means selected to determine whether they are rationally
related to the objective sought to be achieved. ‘What must be stressed is that the
purpose of the enquiry is to determine not whether there are other means that could
have been used, but whether the means selected are rationally related to the
objective sought to be achieved. And if, objectively speaking, they are not, they fall
short of the standard demanded by the Constitution.’
Fifth, the process by which the decision is made and the decision itself must be
rational. Where a decision is made without proper consultation, it will be held to be
irrational.
What happens if an official ignores some factors in making the decision?
109 The summary is drawn from the Democratic Alliance v President of the Republic of South Africa 2013
(1) SA 248 (CC) at paras [29] to [32] and Airports Company of South Africa v Tswelokgotso Trading
Enterprises CC 2019 (1) SA 204 (GJ) at paras [5] to [16].

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There is a three-stage enquiry
After assessing which factors were ignored, you need to ask the following questions.
First, are the factors which were ignored relevant?
Second, is the failure to consider the material rationally related to the purpose for
which the power was conferred? So, was there a good reason to ignore the material?
Third, if the answer to the second stage is “NO”, then does ignoring relevant facts
make the entire process irrational so that the final decision must be irrational as well?
As Unterhalter J said:
“In sum, a court may interfere where a functionary exercises a competence to decide
facts but in doing so fails to get the facts right in rendering a decision, provided the
facts are material, were established, and meet a threshold of objective verifiability.
[Thus] an error as to material facts is a reviewable error.
The exercise of judgment by the functionary in considering the facts, such as the
assessment of contested evidence or the weighing of evidence, is not reviewable,
even if the court would have reached a different view on these matters …”.
110
Finally, Unterhalter J raises three questions to consider.
“[15] There remain conceptual issues of considerable complexity that the courts will
have to determine in this area of law. First, should the principle of legality be
interpreted so expansively that many grounds of review are practically co-extensive
with the grounds of review under PAJA, given the application of the principle to all
public powers and the respect that is due to the constitutional value of the separation
of powers? Second, is error of fact, as a ground of review, now cast so broadly under
all articulations of the applicable test, that it breaches the distinction between
rationality and reasonableness review? And finally, since error of fact permits a court
to interfere on the basis that a decision must meet a standard of correctness, does
judicial review now trespass upon the domain of appeals?
L. Remedies and the limitations analysis
A remedy may apply to any violation or infringement of the Constitution. However,

infringements of rights in the Bill of Rights require specific attention. The first step is to
consider whether the limitations analysis applies to your case.
110 ACSA v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ) at para [15].

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What is the limitations analysis?
In this guide, it is not necessary to go through all the academic permutations of the
limitations analysis you traversed at university. A practical approach for busy legal
practitioners is preferred. So, here are the essential issues you will address when
advising your client.
First, it is trite that no right in the Bill of Rights is absolute. Section 7(3) of the
Constitution makes this clear.
Second, any right in the Bill of Rights may be limited in terms of section 36 of
the Constitution.
Third, the more substantial the inroad into a fundamental right, the more
111
persuasive the grounds of justification must be.
So, how do you address these matters with your clients?

Let us start with section 7.
7 Rights
(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all
people in our country and affirms the democratic values of human dignity, equality and
freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section
36, or elsewhere in the Bill.
Section 7 refers to the Bill of Rights. The Bill of Rights is Chapter 2 of the Constitution:
sections 7 to 39. Your clients approach you for advice on their issues. The essential
practical way to deal with Chapter 2 infringements is immediately to establish the
facts, then to consider the law. If the facts indicate a potential infringement of a right
in the Bill of Rights, then you consider section 36.
36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.
111 S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) at para [18] and NCR v Opperman 2013 (2) SA 1
(CC) at para [70].

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The limitations analysis
The limitations analysis is the process you use after having established the facts of your client’s
case to determine whether one of the following three points is at issue:
First, is there an infringement of an entrenched right?

If not, no analysis is needed.
Second, if there is an infringement of an entrenched right, does the infringement arise

112 113
from legislation (a statute or a regulation ), the administration of a statute or
114
regulation (how an official carries out work in terms of that law ) or the common law
115
(judicial precedent from case law or common law authorities)?
Third, is that infringement permissible in terms of section 36(1) of the Constitution?
The limitations analysis is a weighing of the issues at stake in the second and third points
116
above. Case law refers to the process as the balancing of different interests.
Some academic literature refers to ‘balancing’ as a ‘bad metaphor’. However, like the Curate’s
egg, the concept of balancing is good in parts and bad in parts. The table below sets out a
convenient way to approach the limitations analysis. You may adopt and adapt it to your
needs.
Remember: facts first, law later.
The facts of your client’s case indicate an infringement of a Chapter 2 right. The infringement
must be tested against section 36. Section 36 needs to be dissected into its essential
components. Then, step by step, you analyse (balance or weigh) the facts for and against
each of the components of section 36.
The critical concept to consider is ‘justify’ or ‘justification’. Can the limitation be justified?
• If yes, advise your client to settle.

• If no, advise your client to litigate, after you have explained the costs implications and
risks inherent in litigation.
• There is no shortcut to proper preparation for litigation.
112 NUMSA v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC) at para [37].
113 Esau v Minister of COGTA 2021 (3) SA 593 (SCA) at para [108].
114 Amcu v Chamber of Mines of SA 2017 (3) SA 242 (CC) at para [86].
115 Dladla v City of Jhb 2018 (2) SA 327 (CC) (2018 (2) BCLR 119; [2017] ZACC 42) at [95].
116 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at para [35].

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Table to consider section 36 limitation of rights
Text of section 36 Case law requirements Ref
A right may be limited only in The starting point is whether the limitation is authorised by 001
terms of law of general a ‘law of general application’.
application to the extent that
the limitation is:
reasonable and justifiable in It is necessary to weigh the extent of the limitation of the 002
an open and democratic right, on the one hand, with the purpose, importance and
society based on human effect of the infringing provision on the other, taking into
dignity, equality and freedom account the availability of less restrictive means to achieve
this purpose.
taking into account all the court must engage in a balancing exercise and arrive at 003
relevant factors, a global judgment on proportionality and not adhere
mechanically to a sequential check-list
including- Human dignity informs constitutional adjudication and 004
interpretation at a range of levels.
(a) the nature of the Both the nature and importance of the right must 005
right; necessarily be taken into account.
(b) the importance of the Identify the purpose, then assess the importance of its 006
purpose of the limitation
limitation;
(c) the nature and extent The level of justification required to warrant a 007
of the limitation; limitation upon a right depends on the extent of the
limitation. The more invasive the infringement, the
more powerful the justification must be.
(d) the relation between There must be a rational connection between the purpose 008
the limitation and its of the law and the limitation imposed by it.
purpose; and
(e) less restrictive means Less restrictive means does not postulate an unattainable 009
to achieve the norm of perfection. The standard is reasonableness.
purpose.
References to the case law in the table above

001 Nandutu v Minister of Home Affairs 2019 (5) SA 325 (CC) at para [71].
002 Richter v Min of Home Affairs 2009 (3) SA 615 (CC) at para [71].
003 S v Manamela (DG of Justice Intervening) 2000 (3) SA 1 (CC) at para [32].
004 Dawood; Shalabi; Thomas v Min of Home Affairs 2000 (3) SA 936 (CC) at para [35].
005 S v Manamela (DG of Justice Intervening) 2000 (3) SA 1 (CC) at para [66] approved in
Economic Freedom Fighters v Minister of Justice and Correctional Services 2021 (2) SA
1 (CC) at para [35].
006 Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) at para [23].
007 S v Manamela (DG of Justice Intervening) 2000 (3) SA 1 (CC) at para [69].
008 Gaertner v Minister of Finance 2014 (1) SA 442 (CC) at para [67].
009 SATAWU v Garvas 2013 (1) SA 83 (CC) at para [82].

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On completion of the limitations analysis, the next step is to consider an appropriate

remedy.
Remedy, in the context of the Constitution, means to set right an undesirable situation.
What is undesirable?
Anything that is in violation of the Constitution.
Remember: The Constitution of the Republic of South Africa, 1996 is the supreme
law of the Republic; law or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled. 117
The scope of constitutional remedies in our law is vast. The source for the vast scope
is firstly section 172 (1) of the Constitution.
172 Powers of courts in constitutional matters

(1) When deciding a constitutional matter within its power, a court-
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period
and on any conditions, to allow the competent authority to correct
the defect.
118
How vast is the scope of ‘just and equitable’ as a remedy?
“I have alluded to the multi-dimensional aspects of the just and equitable enquiry.
Factual disputes, at a practical level, add another dimension to be considered. In
these circumstances a just and equitable remedy will not always lie in a simple choice
between ordering correction and maintaining the existing position. It may lie
somewhere in between, with competing aspects assessed differently. The order made
at the end of this judgment is of this kind.”
For the purposes of this guide, eleven remedies are identified.
The following list of eleven remedies is a guide. You may add remedies to the list or
remove remedies that you may never see or use in your practice.
117 Chapter 1 Founding Provisions, s 2 of the Constitution, 1996.

118 Per Froneman J (Moseneke ACJ, Cameron J, Dambuza AJ, Jafta J, Khampepe J, Madlanga J, Majiedt
AJ, Van der Westhuizen J and Zondo J concurring) in Allpay Cons Investment Holdings (Pty) Ltd v CEO,
Sassa 2014 (4) SA 179 (CC) at para [39].

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THE ELEVEN SUGGESTED REMEDIES ARE
1. Declaration of invalidity 119

2. Declaration of rights 120
3. Interdicts 121
4. Mandamus 122
5. Damages 123
6. Contempt of court 124
7. Exclusion of evidence 125
8. Administrative law and labour remedies 126
9. Development of the common law 127
10. Costs awards 128
129
11. Referral to Chapter 9 Institutions or other relevant authorities
1. Declarations of invalidity
“Logic, general legal principle, the Constitution and the binding authority of this court
all point to a default position that requires the consequences of invalidity to be
corrected or reversed where they can no longer be prevented. It is an approach that
accords with the rule of law and principle of legality.” 130
Laws passed by national, provincial and municipal authorities are all original
legislation under the Constitution. If that law is inconsistent with the Constitution, it
must be declared invalid by any Superior Court seized with the matter.
Assuming the law is inconsistent with the Constitution, Superior Courts will apply the
‘just and equitable’ approach to seek ‘appropriate relief’ in the circumstances of the
case. Superior Courts have at least the following interpretive tools to apply to the
task.
119 Currie & De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 183.
120 Currie & De Waal op. cit., at 195.
122 MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) at para [30].
123 Currie & De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 200.
124 Meadow Glen Home Owners Assoc v Tshwane City Metro Muni 2015 (2) SA 413 (SCA) at para [22].
See also Currie & De Waal op. cit., at 205.
128 MEC for Health & Social Dev, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) at paras [27] to [34].
129 Black Sash Trust v Minister of Social Development (Freedom Under Law NPC Intervening) 2017 (3)
SA 335 (CC) at paras [72] to [75].
130 EFF v Speaker, NA 2016 (3) SA 580 (CC) at paras [67]-[68] and Prof C Murray, The Human Rights
Commission et al: What is the Role of South Africa’s Chapter 9 Institutions? [2006] Per 10.

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Severance – removing the invalid part of the law if the rest of the law would still
make sense and would comply with its original purpose. 131
Reading-in – see the explanation below
Reading-down – see the explanation below
Striking down – here severance cannot save the law. The entire law is struck down.
Van der Westhuizen J explained the difference between reading-down and reading-in. 132
“[38] There may be some confusion about the ‘remedies’ generally referred to as
reading- down and reading-in. The first is an interpretive tool. It is a way to save a
statutory provision from constitutional invalidity by giving it a meaning — on its
wording — that is constitutionally compliant. The second is a remedy and is more
invasive. It is invoked after a provision has been found constitutionally invalid. Rather
than to burden the legislature with a change that may be needed, a court reads the
constitutionally required words into the provision or phrase by adding them.”
2. Declarations of rights
Section 38 of the Bill of Rights deals with standing. However, if a right in the Bill of
Rights is infringed or threatened, the section expands the toolkit for constitutional
remedies to include a declaration of rights.
38 Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a court
are -
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.

(Emphasis added)
Of course, as stated from the Fose case below, appropriate relief ‘may be a
declaration of rights, an interdict, a mandamus or such other relief as may be
required to ensure that the rights enshrined in the Constitution are protected and
enforced’.
131 Allpay Consolidated Investment Holdings (Pty) Ltd v CEO, SASSA 2014 (4) SA 179 (CC) at para [30].
132 Tronox KZN Sands (Pty) Ltd v KZN Planning & Dev Appeal Tribunal 2016 (3) SA 160 (CC) at para
footnotes omitted. PSA obo Ubogu v Head, Dept of Health, GP 2018 (2) SA 365 (CC) at para [56]. Min of
Justice and Constitutional Development v Prince 2018 (6) SA 393 (CC) at paras [102] to [104].

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Persons seeking a declaration of rights must set out their contention as to what the
alleged right is. They must show they have an interest in the right. Inherent in the
concept of a right is the idea that it resides in a determinate person, and the persons
133
interested in a right are those in whom it inheres or against whom it avails.
In short, getting a declaration of rights in our Courts will depend to a large measure
in the quality of drafting the prayers in the Notice of Motion or the Summons.
3. Interdicts
The principles for common law interdicts apply to interim interdicts and final
interdicts sought under constitutional law as well. However, recently the courts have
developed a new type of interdict: the structural interdict. The requirements for these
interdicts are:
Interim interdict 134

(a) a prima facie right, which may even be open to some doubt;
(b) an apprehension of irreparable harm if the interdict is not granted;
(c) a balance of convenience in favour of the grant of the interdict; and
(d) the absence of any other satisfactory remedy.
Final interdict 135

(a) clear right;
(b) an injury committed or reasonably apprehended; and
(c) the absence of similar protection by any other ordinary remedy.
4. Mandamus and structural interdicts

Although the requirements of a mandamus are the same as a final interdict, the
mandamus as adapted to constitutional jurisprudence is closely related to the
structural interdict. For the dangers of such an interdict allowing a court to trespass
into the domain of the executive (or legislature) consider the remarks of Harms JA in
Modderfontein Squatters et al v Modderklip Boerdery (Pty) Ltd 2004 (6) SA
40 (SCA) at para [39].
Structural interdict 136

(a) the court declares how the government conduct falls short of a constitutional
obligation;
133 Paraphrased from MVF Limb: Sheriff for the Magisterial District of the Cape v South Sea Driller, Her
Owner and all Other Parties Interested in Her 1999 (4) SA 221 (C) at page 228 where Donen AJ cited
with approval Electrical Contractors’ Association (South Africa) and Another v Building Industries
Federation (South Africa) (2) 1980 (2) SA 516 (T) at 519H-520.
134 Saharawi Arab Democratic Republic v Owners & Charterers of The Cherry Blossom 2017 (5) SA 105
ECP at paras [49]-[50] and Camps Bay Residents and Ratepayers Association v Augoustides 2009 (6) SA
190 (WCC) at para [7].
135 Hotz v University of Cape Town 2017 (2) SA 485 (SCA) at para [29].
136 Currie & De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 199. See also
the case law cited by the authors in footnotes 134 and 135.

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(b) the court orders the government to comply with the obligation;
(c) the court orders the government to produce a report within a specified time
period setting out the steps it has taken and what future steps will be taken;
(d) the applicant is given an opportunity to respond to the report; and,
(e) the matter is enrolled for hearing. If the court is satisfied, the report is made an
order of court.
As Moseneke DCJ explained:
“[97] … s 172(1)(b) confers wide remedial powers on a competent court adjudicating

a constitutional matter. The remedial power envisaged in s 172(1)(b) is not only
available when a court makes an order of constitutional invalidity of a law or conduct
under s 172(1)(a). A just and equitable order may be made even in instances where
the outcome of a constitutional dispute does not hinge on constitutional invalidity of
legislation or conduct.
This ample and flexible remedial jurisdiction in constitutional disputes permits a court
to forge an order that would place substance above mere form by identifying the
actual underlying dispute between the parties and by requiring the parties to take
steps directed at resolving the dispute in a manner consistent with constitutional
requirements. In several cases this court has found it fair to fashion orders to
facilitate a substantive resolution of the underlying dispute between the parties.
Sometimes orders of this class have taken the form of structural interdicts or
supervisory orders. This approach is valuable and advances constitutional justice,
137
particularly by ensuring that the parties themselves become part of the solution.”
5. Damages
138
In 1997, referring to the interim Constitution, Ackermann J said:
“[60] … it seems to me that there is no reason in principle why ‘appropriate relief’

should not include an award of damages, where such an award is necessary to
protect and enforce chap 3 rights. Such awards are made to compensate persons
who have suffered loss as a result of the breach of a statutory right if, on a proper
construction of the statute in question, it was the Legislature's intention that such
damages should be payable, and it would be strange if damages could not be claimed
for, at least, loss occasioned by the breach of a right vested in the claimant by the
supreme law. When it would be appropriate to do so, and what the measure of
137 Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010 (2) SA 415
(CC) (2010 (3) BCLR 177; [2009] ZACC 32) at para 97.
138 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) per Ackermann J at para [60] and see
para [19].

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damages should be will depend on the circumstances of each case and the particular
right which has been infringed.”
Damages are in compensation of a wrong done in the past. The common law of Delict
is the usual route to compensation. However, the facts of the Modderfontein case
demonstrate that constitutional damages are an effective way to assist a landowner
139
who has been let down by the State.
In the Modderfontein case, Harms JA said:
“[43] What ‘effective relief’ entails will obviously differ from case to case.
Where a trespasser invades an owner-occupied household, more immediate
intervention will be required from the State than in the case of unoccupied or
unutilised land. This is not to deny the fact of the breach of rights in the latter case.
It is merely to assert that constitutional remedies will differ by circumstance. The
only appropriate relief that, in the particular circumstances of the case, would
appear to be justified is that of ‘constitutional’ damages, for example, damages due
to the breach of a constitutionally entrenched right. No other remedy is apparent.
Return of the land is not feasible. There, is in any event, no indication that the land,
which was being used for cultivating hay, was otherwise occupied by the lessees or
inhabited by anyone else.
Ordering the State to pay damages to Modderklip has the advantage that
the Gabon occupiers can remain where they are while Modderklip will be
recompensed for that which it has lost and the State has gained by not having
to provide alternative land. The State may, obviously, expropriate the land, in
which event Modderklip will no longer suffer any loss and compensation will not be
payable (except for the past use of the land).
A declaratory order to this effect ought to do justice to the case. Modderklip

will not receive more than what it has lost, the State has already received value for
what it has to pay and the immediate social problem is solved while the medium and
long-term problems can be solved as and when the State can afford it.” (Footnotes
omitted: emphasis added.)
6. Contempt of Court
“[T]here ought to be no doubt that a public official who is ordered by a court to
do or to refrain from doing a particular act, and fails to do so, is liable to be
committed for contempt, in accordance with ordinary principles.” 140
139 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and
Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) (2004 (8)
BCLR 821; [2004] 3 All SA 169) at para [43].
140 Meadow Glen Home Owners’ Association v Tshwane City Metro Mun 2015 (2) SA 413 (SCA) at para
[22], citing with approval MEC, Dept of Welfare, EC v Kate 2006 (4) SA 478 (SCA) at para [30].

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“Civil contempt proceedings have always had a dual nature and the discussion thus
far has focused only on its criminal aspect. In my judgment the perceived difficulties
associated with its continued treatment as a criminal offence should not prevent
attention being given also to its purely civil character and the possible development
of the common law in that regard. In addition to its retention as a criminal offence,
albeit with a stricter standard of proof, the potential effectiveness of issuing a
(civil) declaratory order that an offending litigant is in contempt of a court
order should not be underestimated. Such a declaration would have as its
purpose to uphold the rule of law too, but even if shorn of its criminal sanction or
punishment there is, in my view, no reason why other civil sanctions may not attach
to such an order.’ 141
Nkabinde ADCJ (Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla

J, Mojapelo AJ, Pretorius AJ and Zondo J concurring) said:
“[67] Summing up, on a reading of Fakie, Pheko, and Burchell, I am of the view that
the standard of proof must be applied in accordance with the purpose sought to be
achieved, or differently put, the consequences of the various remedies. As I
understand it, the maintenance of a distinction does have a practical significance: the
civil contempt remedies of committal or a fine have material consequences on an
individual’s freedom and security of the person.
However, it is necessary in some instances because disregard of a court order not
only deprives the other party of the benefit of the order but also impairs the effective
administration of justice.
There, the criminal standard of proof — beyond reasonable doubt — applies always.
… On the other hand, there are civil contempt remedies — for example, declaratory
relief, mandamus or a structural interdict — that do not have the consequence of
depriving an individual of their right to freedom and security of the person. … Here,
and I stress, the civil standard of proof — a balance of probabilities — applies.” 142
(Emphasis and paragraph breaks added.)
In Pheko v Ekurhuleni City 2015 (5) SA 600 (CC) the Court held that:
“[28] Contempt of court is understood as the commission of any act or statement

that displays disrespect for the authority of the court or its officers acting in an
official capacity. This includes acts of contumacy in both senses: wilful disobedience
and resistance to lawful court orders. This case deals with the latter, a failure or
refusal to comply with an order of court. Wilful disobedience of an order made in civil
proceedings is both contemptuous and a criminal offence. The object of contempt
proceedings is to impose a penalty that will vindicate the court's honour, consequent
upon the disregard of its previous order, as well as to compel performance in
accordance with the previous order.” (footnotes omitted).
141 Burchell v Burchell [2005] ZAECHC 35 (ECD 364/2005), quoted with approval in Matjhabeng Local
Muni v Eskom Holdings Ltd 2018 (1) SA 1 (CC) at paras [50] to [54]. See also Bernstein and Others NNO
v Bester and Others 1996 (2) SA 751 (CC) at para [105].
142 Matjhabeng Local Muni v Eskom Holdings Ltd 2018 (1) SA 1 (CC) at para [67].

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On 29 June 2021 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 and Others [2021] ZACC 18, the Constitutional Court found the former
President of South Africa, Mr JG Zuma guilty of contempt of court and sentenced him
to 15 months’ imprisonment. The Court cited Pheko v Ekurhuleni City 2015 (5) SA 600
(CC) with approval. 143
7. Exclusion of evidence
The exclusion of evidence obtained in violation of a fundamental right, like privacy,

‘will in many cases, both civil and criminal, constitute appropriate relief.’ 144 Similarly,
when the rights in section 35 of the Constitution of an arrested, detained or accused
person are breached, exclusion of evidence would constitute appropriate relief.
8. Administrative law and labour remedies
Whether unconstitutional conduct is addressed in terms of the Promotion of

Administrative Justice Act 3 of 2000 or in terms of the doctrine of legality, the main
remedies for your client will be: 145
(a) to set aside the decision or conduct;

(b) to have the decision substituted or remitted (sent back) for determination;
(c) to seek compensation (like damages) in exceptional cases; or,
(d) to seek an appropriate remedy which suits your client and which a court
would be prepared to grant.
The classic case in labour law, was the remedy of instatement. SAA had refused to
employ Hoffmann because of his HIV status. Ncgobo J said: 146
“An order of instatement, which requires an employer to employ an employee, is a

basic element of the appropriate relief in the case of a prospective employee who is
denied employment for reasons declared impermissible by the Constitution.”
9. Development of the common law
Development of the common law takes place in terms of s 39(2) of the Constitution.
143 See especially paras [91] and [101] which refer in detail to Pheko v Ekurhuleni City 2015 (5) SA 600
(CC) (2015 (6) BCLR 711; [2015] ZACC 10).
144 Currie & De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at page 206.
145 Currie & De Waal op. cit., at 206 paraphrased.
146 Hoffmann v South African Airways 2001 (1) SA 1 (CC) at para [50].

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(2) When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.
The basic steps to develop the common law come from Constitutional Court decisions.
The obligation of Courts to develop the common law, in the context of the s 39(2)
objectives, is not purely discretionary. 147
The Courts must develop the common law. Here is the approach.
Froneman J said: 148

“[27] To start the enquiry one must be clear on:
(1) what development of the common law means;
(2) what the general approach to such development is;
(3) what material must be available to a court to enable the development; and
(4) the limits of curial, rather than legislative, development of the common law.”
The development of the common law cannot take place in a factual vacuum.
“The common law develops incrementally through the rules of precedent, which
ensure that like cases are treated alike. Development occurs not only when a
common-law rule is changed altogether or a new rule is introduced, but also when a
court needs to determine whether a new set of facts falls within or beyond the scope
of an existing rule.”
“Section 39(2) of the Constitution requires the courts to promote the spirit, purport
and objects of the Bill of Rights when developing the common law.”
“[31] The … approach to development of the common law under s 39(2) is that a
court must:
(1) determine what the existing common-law position is;
(2) consider its underlying rationale;
(3) enquire whether the rule offends s 39(2) of the Constitution;
(4) if it does so offend, consider how development in accordance with s 39(2) ought
to take place; and
(5) consider the wider consequences of the proposed change on the relevant area
of the law.”
147 Carmichele v Minister of Safety and Security (CALS Intervening) 2001 (4) SA 938 (CC) at para [39].
148 MEC for Health & Social Dev, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) at paras [27] to [35]
paraphrased and adapted for the text in the Guide.

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Using the values in our Constitution to develop the common law

In Beadica 231 CC and Others v Trustees for the time being of the Oregon
Trust and Others 2020 (5) SA 247 (CC) Theron J (Khampepe ADCJ, Jafta J,
Majiedt J, Mathopo AJ, Mhlantla J and Tshiqi J concurring) said:
“[76] Indeed, this court has recognised the necessity of infusing our law of
contract with constitutional values. This requires courts to exercise both
resourcefulness and restraint. In line with this court’s repeated warnings
against overzealous judicial reform, the power held by the courts to develop the
common law must be exercised in an incremental fashion as the facts of each
case require. The development of new doctrines must also be capable of finding
certain, generalised application beyond the particular factual matrix of the case
in which a court is called upon to develop the common law. While abstract
values provide a normative basis for the development of new doctrines, prudent
and disciplined reasoning is required to ensure certainty of the law.” 149
Finally, when exercising their authority to develop the common law, ‘judges should
be mindful of the fact that the major engine for law reform should be the Legislature
and not the Judiciary’. The principle of separation of powers should thus be
respected. 150
Development of the customary law

In MM v MN 2013 (4) SA 415 (CC) Froneman J, Khampepe J and Skweyiya J
(Moseneke DCJ, Cameron J and Yacoob J concurring) said:
“[43] This court has accepted that the Constitution’s recognition of customary law as
a legal system that lives side by side with the common law and legislation requires
innovation in determining its ‘living’ content, as opposed to the potentially stultified
version contained in past legislation and court precedent. However, to date, this court
has not engaged in an incremental development of customary law as contemplated
by s 39(2) of the Constitution.”
10. Costs
The general rule about costs in constitutional litigation is an unsuccessful litigant in
cases against the state ought not to be ordered to pay costs. A successful litigant
should have their costs paid by the state. Only frivolous cases do not merit protection
against costs orders. 151
149 Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others 2020 (5) SA
247 (CC) at para [76] footnotes omitted.
150 Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd 2016 (1) SA 621 (CC) at paras
and especially [40], quoting Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC) at para [39].
151 Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC) para [22]. Sachs J explained:
“[23] The rationale for this general rule is threefold. In the first place it diminishes the chilling effect that
adverse costs orders would have on parties seeking to assert constitutional rights.
Constitutional litigation frequently goes through many courts and the costs involved can be high.
Meritorious claims might not be proceeded with because of a fear that failure could lead to financially

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“Section 172 of the Constitution vests in courts wide remedial powers when dealing
with constitutional matters. In terms of this provision a court may make any order —
including a costs award — that is just and equitable. Since an award of costs is a
discretionary matter, the discretion must be exercised judicially, having regard to all
the relevant circumstances.” 152
The wide remedial powers, including costs awards, can indeed become a remedy your
client may seek. Consider the Black Sash Trust case in which the Minister had explain
to why she should not be personally mulcted in costs. 153
11. Referral to Chapter 9 Institutions
Remember: if your client has come to you for advice and does not want to go to
litigation, get all the facts of your client’s case and then consider whether the matter
154
could be referred to one of the Chapter 9 Institutions. The purpose of the State
Institutions is to strengthen democracy in South Africa. Consequently, each
assessment of your client’s case and the facts must focus on raising a complaint that
such Institution will investigate.
There are six Chapter 9 Institutions
(a) The Public Protector.

(b) The South African Human Rights Commission.
(c) The Commission for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities.
(d) The Commission for Gender Equality.
(e) The Auditor-General.
(f) The Electoral Commission.
ruinous consequences. Similarly, people might be deterred from pursuing constitutional claims because
of a concern that even if they succeed, they will be deprived of their costs because of some inadvertent
procedural or technical lapse. Secondly, constitutional litigation, whatever the outcome, might
ordinarily bear not only on the interests of the particular litigants involved, but also on the rights of all
those in similar situations. Indeed, each constitutional case that is heard enriches the general body of
constitutional jurisprudence and adds texture to what it means to be living in a constitutional
democracy. Thirdly, it is the State that bears primary responsibility for ensuring that both the law and
State conduct are consistent with the Constitution. If there should be a genuine, non-frivolous
challenge to the constitutionality of a law or of State conduct, it is appropriate that the State
should bear the costs if the challenge is good, but if it is not, then the losing non-State
litigant should be shielded from the costs consequences of failure. In this way responsibility for
ensuring that the law and State conduct are constitutional is placed at the correct door.”
152 Hotz v University of Cape Town 2018 (1) SA 369 (CC) at para [21].
153 Black Sash Trust v Minister of Social Development 2017 (3) SA 335 (CC) at paras [72] to [75].
154 Section 181 of the Constitution.

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Public Protector Act 23 of 1994

The Public Protector investigates complaints submitted in terms of s 6(4) into any
alleged:
(i) maladministration in the affairs of government at any level;
(ii) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or
other improper conduct or undue delay by a person performing a public
function;
(iii) improper or dishonest act, or omission or offences with respect to public
money;
(iv) improper or unlawful enrichment, or improper advantage, or promise of such in
connection with the affairs of government at any level or of a person performing
a public function; or
(v) act or omission by a person in the employ of government at any level, or a
person performing a public function, which results in unlawful or improper
prejudice to any other person.
The scope is wide. It allows you to advise your client where to focus the complaint.
South African Human Rights Commission Act 40 of 2013

The SAHRC investigates complaints and brings proceedings in its own name in terms
of s 13 of its Act.
The SAHRC often prosecutes matters in terms of the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000. Once unfair discrimination is
proved, section 13 of the Act places the burden of proof on an alleged offender to
justify the discrimination. Section 20 of the Act mirrors section 38 in the Constitution
as to standing.
Commission for Gender Equality Act 39 of 1996

The Commission for Gender Equality investigates matters under section 11. The
Commission also relies on the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 to prosecute matters.
Public Audit Act 25 of 2004

The Auditor-General investigates complaints in terms of s 5(1)(d) of the Public Audit
Act. These matters relate to finances of the state and organs of state.
Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities Act 19 of 2002. The Commission
investigates complaints in terms of section 7 of the Act. Regrettably, the Commission
has been the least effective of the Chapter 9 Institutions. In your practice you might
be the legal practitioner to reinvigorate the Commission!
Electoral Commission Act 51 of 1996

The Electoral Commission investigates complaints about elections and political party
matters like lists of candidates and party deposits for elections in terms of section
20(7).

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M. Other assorted gremlins

There is one final term that causes some ambiguity in constitutional law.
“Subsidiarity denotes a hierarchical ordering of institutions, of norms, of principles, or

of remedies, and signifies that the central institution, or higher norm, should be
invoked only where the more local institution, or concrete norm, or detailed principle or
remedy, does not avail. The word has been given a range of meanings in our
constitutional law.” 155
However, the principle of constitutional subsidiarity does NOT apply as a hard and
156
fast rule.
BASIC TEMPLATE FOR CONSTITUTIONAL LAW LITIGATION
Profound changes in our constitutional law
Summary of the profound changes in our constitutional law since the new
focus from Friday, 23 August 2013
1. The principle of constitutional avoidance is no more.

2. Appeals based on the old law of ‘judgment or order’ are no more. Now decisions
count.
3. Reviews are now permitted on law and on facts.
Constitutional approach to rights determination enjoys primacy.

Justice Cameron delivered a key unanimous judgment in the Jordaan case. 157 Here
are the principles paraphrased from the judgment. In effect the doctrine or principle
of constitutional avoidance is no more.
Ekurhuleni relied on S v Mhlungu 1995 (3) SA 867 (CC) at para [59] where
Kentridge AJ had laid down a general principle that where it is possible to decide any
case without reaching a constitutional issue, that course should be followed.
But, Mhlungu should be set in its proper perspective.
155 My Vote Counts NPC v Speaker of the NA 2016 (1) SA 132 (CC) at para [46].
156 Ibid. at para [182]. See also Pretorius v Transport Pension Fund 2019 (2) SA 37 (CC) at para [52].
157 Jordaan v Tshwane Metropolitan Municipality 2017 (6) SA 287 (CC) at paras [6] to [9] paraphrased.
See also the minority decision in My Vote Counts NPC v Speaker of the NA 2016 (1) SA 132 (CC) at paras
[50] and [51].

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The Mhlungu case was decided under the interim Constitution, where the
Constitutional Court had only constitutional jurisdiction, and the Appellate Division of
the Supreme Court, which became the Supreme Court of Appeal, had only non-
constitutional jurisdiction.
That separation of appellate power, and the cautions and courtesies it necessitated
between the Courts, has long been removed completely from our constitutional
landscape.
From 4 February 1997, section 168 of the Constitution conferred constitutional

jurisdiction on the Supreme Court of Appeal, subject to appeal to the Constitutional
Court, and at the same time empowered the Constitutional Court to develop the
common law. 158
The consequence of extending the jurisdiction of the appellate courts was both logical
and inevitable. On 23 August 2013, the Constitutional Court was given jurisdiction to
decide non- constitutional matters that raise arguable points of law of general public
importance which the Constitutional Court ought to consider.
The Constitutional Court thus became the apex court on all matters.
The result is that under the Constitution, 1996 the approach Mhlungu espoused has
long since been abandoned in favour of its opposite approach, namely that
constitutional approaches to rights determination must generally enjoy primacy.
Far from avoiding constitutional issues whenever possible, the Constitutional Court
has emphasised that virtually all issues — including the interpretation and application
of legislation and the development and application of the common law — are,
ultimately, constitutional. This affects how to approach constitutional issues from the
outset.
Change from the Supreme Court Act 59 of 1959 to the

Superior Courts Act 10 of 2013
Under the 1959 Act, an appeal was permitted against a judgment or an order made by
a court. Now an appeal is permitted against a decision made by a court. A ‘decision’
includes the decision of the President of the SCA acting alone under s 17(2)(f). 159
158 Section 173 of the Constitution provides
“The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the
inherent power to protect and regulate their own process, and to develop the common law, taking into
account the interests of justice.”
159 Cloete and Another v S and A Similar Application 2019 (4) SA 268 (CC) at para [33].
“… [t]he s 17(2)(f) procedure is part of the appeal process. It involves making a judicial determination on
a defined legal issue between the litigating parties. The President’s decision under s 17(2)(f) of the Act
thus falls comfortably within the judicial function and purpose of the Supreme Court of Appeal leave-to-
appeal process, in this instance, to be exercised by one judge of that court, its President.”

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Review now permitted on law and on facts

An error on material facts, objectively verifiable, is a reviewable error. The judgment
by the functionary considering those facts, such as the weighing of evidence, is not
reviewable, even if the court would have reached a different view on the facts. 160
The Court Cycle and the Facts
The Court Cycle in all litigious matters

In general, the Court cycle starts with taking instructions, then drafting pleadings,
then litis contestatio (close of pleadings) then proceeds to pretrial procedures and
practice notes, the trial, the argument, the judgment and, if necessary, all the way to
judgment at the final court of appeal.
Similarly, the court cycle in the motion court starts with taking instructions, then
drafting affidavits, (founding, or answering, and replying) then proceeds to pre-
hearing procedures of practice notes and heads of argument, the hearing, the
argument, the judgment and, if necessary, all the way to judgment at the final court
of appeal.
The Facts
All cases in litigation turn first – on the facts – and then perhaps, on the law. Once
you have marshalled the facts, you will consider the law. So, how do you get the
facts?
Your client has engaged your services to solve a problem.

You need to understand the nature of the problem. You also need to know how the
problem came about. So, at your first consultation when you receive your client’s
instructions, ask your client to recount what happened. Be aware to distinguish the
facts of your client’s version from any opinions held by your client. The search for
facts applies to constitutional law litigation just as it does in all other litigation,
whether it be in civil or criminal law.
Find the facts
As far as possible, render the notes you take from your client’s account into a
chronology of events. Facts that fit snuggly into a chronology tend to have an air of
authenticity. 161
Next, consider the facts from the perspective of the ‘Fourfold Fact Test’.
The fourfold fact test requires you to assess the facts presented to you under the
162
following headings: probable, improbable, plausible and implausible.
160 ACSA v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ) at para [12].
161 Get used to drafting chronology documents. Chronologies are already required in the Appeal Courts
and are being driven by directives into the High Court motion courts. Soon chronologies will be standard
features of all litigation.

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It is correct that you will repeat this test again after pleadings have closed. You may
even use this test when applying the limitations analysis.
The reason you carry out the fourfold fact test while taking instructions is to protect
the integrity of the Court process. You are not a hired gun for your client: you are an
163
officer of the court. You do not have to accept absurd instructions nor implausible
or preposterous versions. You do not have to accept false ‘facts’. Yet, at the same
164
time, you must get all the relevant facts.
Remember, you are performing this exercise before you commence drafting pleadings.
In any event, you will not plead either in action or motion proceedings that: ‘My
client’s instructions are”. Ideally, you should avoid that turn of phrase for the rest of
your career in law!
Later you may, and certainly after pleadings have closed, you will engage in an
exercise often referred to as the ‘Good facts: Bad facts’ assessment. These matters
are discussed again below.
Your assessment of the facts is vital.

There are two important considerations at the outset.
Your client needs to comprehend both considerations.
First, our courts use the adversarial system. The adversarial system is designed – in civil
law – to award the case to the party who succeeds on a balance of probabilities. If your
165
client’s version is improbable or worse implausible, your client will lose the case.
Second, if your client’s version is improbable, settlement needs to be considered as

an appropriate remedy.
REMEMBER
Your client has engaged your services to solve a problem.
To solve that problem your client will need a remedy. Of course, you will be
166
remembering the mantra WHERE THERE IS A RIGHT, THERE IS A REMEDY.
162 If you are worrying whether your client’s version is possible, the version may already be impossible
in the context of the matter!
163 Consider Have Briefcase Will Travel: An Essay on the Lawyer as Hired Gun by Joseph Allegretti
Creighton Law Review 24 no. 3 (1990): 747. See also The Ethics of the Hopeless Case by Judge Owen
Rogers in The Advocate – December 2017.
164 Avoid the embarrassment described in Popcru v Sacoswu 2019 (1) SA 73 (CC) at para [33].
165 This caution applies to your client either as plaintiff/applicant or defendant/respondent.

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The mantra comes from Roman-Dutch Law. It is a convenient way to consider how to
solve the problem for which your client initially engaged your services.
Remember: in the days before Friday, 23 August 2013, legal practitioners used
to focus on whether the problem could be solved without engaging a constitutional
law issue. 167
NOW YOUR FOCUS IS TO EMBRACE CONSTITUTIONAL ISSUES
“Far from avoiding constitutional issues whenever possible, [the Constitutional Court]
has emphasised that virtually all issues — including the interpretation and application
of legislation and the development and application of the common law — are,
ultimately, constitutional. This affects how to approach them from the outset.” 168
Next you will consider whether there is any legislation that may assist your client’s case.
Finally, you will consider what remedy may be available.
The decision to litigate – it’s about the remedy

Will the remedy be effective?
What are the remedies available? Of the eleven main categories of remedy, the
desired remedy depends on the facts of the case, the law, the prayers in the
pleadings as confirmed by your client’s instructions and the ultimate decision by the
apex court, or the last High Court to decide the matter. You must canvass four critical
points with your client.
169
First, constitutional issues must be raised as soon as possible in the pleadings.
Second, all relevant parties must be joined, especially when legislation is under
scrutiny. See Rule 10A of the Uniform Rules of Court and Rule 5 of the Constitutional
Court. 170
Third, Courts determine matters on the pleadings, not on notions of justice outside
the ambit of the pleadings. 171 So, plead well!
172
Fourth, what order is the judge likely to grant?
166 The Latin phrase is Ubi ius ibi remedium - Hiemstra and Gonin Trilingual Dictionary 2 ed at 294. The
Latin word “ius” means a right. Often it appears as ‘jus’. You might even try the phrase on your client!
167 S v Mhlungu and Others 1995 (3) SA 867 (CC) at para [59], page 895E Kentridge AJ said: “I would
lay it down as a general principle that where it is possible to decide any case, civil or criminal, without
reaching a constitutional issue, that is the course which should be followed.”
168 Jordaan v Tshwane Metropolitan Municipality 2017 (6) SA 287 (CC) at para [8].
169 Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) at para [41].
170 RAF v Mdeyide (Minister of Transport Intervening) 2008 (1) SA 535 (CC) at para [27].
171 Gcaba v Minister of Safety & Security 2010 (1) SA 238 (CC) at para [75], cited with approval in
Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC) at para [46].

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Make it easy for the court
Reminder of the eleven remedies listed above
1. Declaration of invalidity
2. Declaration of rights
3. Interdicts
4. Mandamus
5. Damages
6. Contempt of court
10. Costs awards
TAKING INSTRUCTIONS WITH A VIEW TO CONSTITUTIONAL LAW

LITIGATION
A. STEP ONE: what are the FACTS?

Your client has engaged your services to solve a problem. Initially you will not know
whether the matter involves constitutional law litigation or advice. Consultations are
dynamic and your client is probably not aware of all the legal implications of the
matter in the first place. Consequently, listen carefully to your client.
Avoid, as far as possible interrupting your client’s explanation of the facts and events.
Avoid absolutely concocting or suggesting a version for your client.
To understand the nature of your client’s problem you need the facts.
1. Draw a chronology of events.
2. Apply the Fourfold Fact Test to your client’s statement of the facts. Is the
version your client recounts
Probable?
Improbable?
Plausible?
Implausible?
3. Commence your own first draft of the Good facts: Bad facts assessment.
172 President of the RSA v Modderklip Boerdery (Pty) Ltd (Agri SA, Amici Curiae) 2005 (5) SA 3 (CC) at
paras [50] and [51] read with paras [65] and [66].

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Remember
The assessment must view the facts from the perspective of all the litigants
Parties Good facts Bad facts

Applicant/Plaintiff
Respondent/Defendant
Pose as many pertinent questions as possible to satisfy yourself that you have
grasped your client’s problem and version. The version must be at least plausible
before you proceed to the next step. Ideally your client’s version should be probable.
Explain the adversarial system to your client, especially that the civil law system
turns on a balance of probabilities.
B STEP TWO: what is the CONSTITUTIONAL ISSUE?

The Constitution is the supreme law of South Africa. Law or conduct inconsistent with the
Constitution is invalid. Obligations imposed by the Constitution must be fulfilled. 173
What is the nature of the problem raised by your client?

More importantly, what would your client like as a remedy to
solve that problem?
1. Does the complaint relate to an Act of Parliament, a regulation or provincial

legislation or municipal by-law?
Legislation?
2. Does the complaint relate to an official of State who either performed a function
or failed to perform a function resulting in adverse consequences to your client?
Administration or the Executive?
3. Does the complaint engage aspects of the Bill of Rights in Chapter 2 of the
Constitution?
Fundamental rights?
174
4. Does the complaint engage aspects of other Chapters in the Constitution?
Other constitutional rights?
5. Does the complaint relate to the common law?
Common law?
173 Section 2 of the Constitution, 1996 paraphrased. Remember, Ngcobo J had correctly pointed out a
considerable constitutional conundrum in Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC)
at para [32] that:
“Whether one can speak of a non-constitutional issue in a constitutional democracy where the
Constitution is the supreme law and all law and conduct has to conform to the Constitution is not
free from doubt.”
174 Consider Navsa ADP’s remarks about the National Prosecuting Authority at para [88] in Nkabinde
and Another v Judicial Service Commission and Another 2016 (4) SA 1 (SCA) at page 33.

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Now you must decide which constitutional issue applies to the facts of your client’s
case. The fancy phrase is ‘to contextualise the constitutional issue’. Inevitably, while
you assess the nature of the constitutional issue your client is raising, your mind will
drift towards possible remedies. Remember the observation of Justice Kriegler that:
175
“Our flexibility in providing remedies may affect our understanding of the right.”
C. STEP THREE: what is the potential REMEDY?

Having heard your client, you will assess whether the problem to be solved stems
from one of the five categories listed in Step Two. You will also be mulling over
whether the matter should proceed to Court on motion or by way of action. And, you
will focus on potential remedies.
Reminder of the eleven remedies listed above
1. Declaration of invalidity
2. Declaration of rights
3. Interdicts
4. Mandamus
5. Damages
6. Contempt of court
10. Costs awards
TO RUN A CONSTITUTIONAL LAW CASE, YOU WILL NEED AT LEAST THE

FOLLOWING FIVE INGREDIENTS
First, a plausible set of facts;
Second, admissible evidence to establish those facts on a balance of probabilities;

Remember, a fact is not a fact until the judge presiding over the case finds it to be a
fact, and, the final appeal court agrees with that finding. That’s a fact!
Third, you will need to base your client’s case on sound legal principles;
Remember, our law is changing fast; make sure you are up to date with the latest
decisions from the highest court to pronounce on matters relevant to your client’s
case.
175 Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) (1998 (1) SACR 227; 1997 (12)
BCLR 1675) at para [27].

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Fourth, you will have to plead the case properly to establish your client’s standing,
the court’s jurisdiction, a triable issue, relevant facts (and evidence in motion
proceedings) and a prayer for obtainable relief;
Remember, you may attach a draft order, or draft orders in the alternative, of the
relief – remedy – your client seeks.
Finally, you will need to comply with the rules of the court in which you commence
proceedings.
D. STEP FOUR: going to COURT

Checklist for pleadings
First, constitutional issues must be raised as soon as possible in the pleadings.

Constitutional issues cannot be raised for the first time on final appeal at the
Constitutional Court. 176
Second, you must join all relevant parties: especially when legislation is under
scrutiny. If the respondent or defendant is the state or an organ of state, consider the
State Liability Act 20 of 1957 and the Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002 before you begin drafting pleadings.
Third, Courts determine matters on the pleadings, not on notions of justice outside
the ambit of the pleadings. A useful way to structure your pleadings is to start by
posing the question you will be answering to the judge:
“Ask how things appear to the well-informed, thoughtful and objective

observer, rather than the hypersensitive, cynical, and suspicious person”, and
plead accordingly. 177
Checklist for motion or action proceedings

Legal practitioners often worry whether to institute their clients’ case in motion
proceedings. The risk relates to a foreseen – or foreseeable – dispute of fact which the
court cannot resolve on the papers. However, since motion proceedings get to court
faster than trial matters, the risk is sometimes worth taking. Cameron J, while in the
SCA, set out the dilemma in the Fakie case. 178
176 Prince v President, Cape Law Society 2001 (2) SA 388 (CC) at para [22], with the latest confirmation
of the rule in Swart v Starbuck 2017 (5) SA 370 (CC) at para [31].
177 The quote is extracted from Van Rooyen v The State (GCB of SA Intervening) 2002 (5) SA 246 (CC)
at para [34]. In that case’s context, Chaskalson CJ was dealing with the separation of powers. However,
the quote has universal application.
178 See Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental
Affairs 2019 (3) SA 251 (SCA) at para [157], where the minority judgment summarises the long-standing
undisputed law.

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Nonetheless, Whatever Strategy You Adopt, there are Important Rules of

Court that Apply to both Motion and Action Proceedings
In the High Court you must join all the relevant parties especially when legislation is
under scrutiny. So, you will use Rule 10A of the Uniform Rules of Court.
In the Constitutional Court the applicable joinder rule is Rule 5. Rule 5 in the
Constitutional Court contains more practical detail on joinder than Rule 10A of the
Uniform Rules. Rule 5 is especially important for appeals that are to be heard by the
Constitutional Court.
A practical tip: when applying Rule 10A of the Uniform Rules at the start of your
client’s case, comply also with the requirements of the Constitutional Court Rule 5. In
the olden days, that approach was named ex abundanti cautela. The Latin phrase
is the fancy version of the English meaning, ‘out of abundant caution’ – which means
belt and braces!
If you act for an amicus curiae, in the High Court you will use Rule 16A. If your
client seeks to intervene in a Constitutional Court matter, you will employ the
Constitutional Court Rule 10.
Yet again, a practical tip: when applying Rule 16A of the Uniform Rules at the start
of your client’s case, comply also with the requirements of the Constitutional Court
Rule 10. Both rules, taken together set out a framework that, if applied, is easy to
understand and to use.
There are many rules in the Uniform Rules of Court and the Constitutional Court rules
that are similar. Indeed, the Constitutional Court rules adopt the Uniform Rules to
bridge gaps in the Constitutional Court rules.
AN OVERVIEW OF THE CONSTITUTIONAL COURT RULES
The Constitutional Court Rules (“the Rules”) were published in Government Notice
R 1675 in Government Gazette 25726 of 31 October 2003 and came into effect from
1 December 2003. That was nearly seventeen years ago. The Rules are out of
date. This creates unexpected anomalies.
First, the Rules refer to the Supreme Court Act 59 of 1959. The Supreme Court Act
was repealed and replaced by the Superior Courts Act 10 of 2013.
Second, the Superior Courts Act repealed ‘petitions’ for leave to appeal to the
Supreme Court of Appeal, formerly the Appellate Division, and replaced the ‘petitions’
with a double-barrel ‘application’ for leave to appeal, which – should neither barrel
blast – would be deflected to the Constitutional Court for a litigant to seek more
powder – to continue that metaphor!

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Third, ‘unless the court under exceptional circumstances orders otherwise, the
operation and execution of a decision which is the subject of an application for leave
to appeal or of an appeal, is suspended pending the decision of the application or
appeal.’
179
Ay, there’s the rub.
If you do not advise your client to close the appeal gap, your client’s case may sit in
limbo (in delay) for a long time. You must advise your client how to request
immediate execution of a judgment despite a pending appeal.
Consider well the text in the Superior Courts Act 10 of 2013 at section 18. The vital
portion of the section 18 Suspension of decision pending appeal reads as follows:
18 Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is
the subject of an application for leave to appeal or of an appeal, is suspended pending
the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision that is an interlocutory order not
having the effect of a final judgment, which is the subject of an application for leave to
appeal or of an appeal, is not suspended pending the decision of the application or
appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise, in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable harm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1)-

(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will be automatically suspended, pending the outcome of such appeal.
(5) For the purposes of subsections (1) and (2), a decision becomes the subject of an
application for leave to appeal or of an appeal, as soon as an application for leave to
appeal or a notice of appeal is lodged with the registrar in terms of the rules.
BY THE WAY:
HAVE YOU READ THE RULES OF THE CONSTITUTIONAL COURT?
There are five tips to assist when you read the Constitutional Court Rules.
179 William Shakespeare: Hamlet, Act 3, Scene 1 – to be or not to be.


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180
First, in the Constitutional Court there are no dies non. However, recently the
practice has developed to use rule 32(2) of the Constitutional Court rules to issue
Practice Directions applying dies non to time counted in the rules to file papers. Dies
non does not apply orders of the Constitutional Court.
Second, Rule 11 Application procedure is important to master. Applications

require the use of the forms set out in the rules. Form 1 is used when approaching
the Constitutional Court without citing a respondent. Form 2 is used when you need
to cite a respondent and the Registrar of the Constitutional Court.
Third, Rule 20 Procedure on appeal is important to master. The procedure on

appeal requires you to pay attention particularly to Rule 20 (2) on the lodging of
records. In practice, the Registrar is very helpful to explain the details required by
the Rule. On your first occasion at the Constitutional Court it is important to
introduce yourself to the Registrar and to familiarise yourself with the layout of the
Court.
Fourth, Rule 18 Direct access requires an applicant to use Form 2. The founding
affidavit must set out the grounds why the applicant contends it is in the interests of
justice to grant direct access, the nature of the relief sought, the grounds on which
such relief is based, whether the matter can be heard without oral evidence, and, if
not, how oral evidence should be heard and conflicts of fact resolved.
There are many cases that grapple with direct access to the Constitutional Court. The
essential difficulty is that direct access renders the Court a court of first and final
181
instance.
Frankly, no doubt you have learned in trial advocacy that the re-examination of your witness
is a “NO-NO”, except in exceptional cases (of which there might be one in a lifetime).
Endeavour never to make the Constitutional Court a court

of first and last instance.
Your client will be disappointed to hear that direct access is not in the interests of
182
justice. The bar is too high and the risk too great for continued good relations
180 Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) at para [30].
181 1Mazibuko NO v Sisulu NNO 2013 (6) SA 249 (CC) at para [35]; and Van der Spuy v General Council
of the Bar of SA (Minister of Justice & Constitutional Dev, Advocates for Transformation & Law Soc of SA
Intervening) 2002 (5) SA 392 (CC) at para [13].
182 United Democratic Movement v Speaker, National Assembly 2017 (5) SA 300 (CC) at para [23].

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between you and your client. Start the litigation in the High Court and plead the
matter well.
Finally, Rule 32 Non-compliance with the rules mirrors the High Court rule 23 in
that if you have missed a time limit or failed to comply with a Constitutional Court
rule you may apply to the Court or the Chief Justice on ‘sufficient cause shown’ for
condonation.
CASE STUDIES FOR THE CONSCIENTIOUS CANDIDATE LEGAL

PRACTITIONER
Case study 01
Your client is a taxi driver in Alexandra, Sandton, Johannesburg. His name is
Mr Kushesha. For the last ten years he has been driving a Mercedes-Benz Sprinter
Minibus. He bought it from a friend who gave up taxi driving after winning the
National Lottery.
Last week the police stopped him while he was transporting passengers from Sandton
to Alexandra. They asked for the papers to the vehicle. He handed the papers to the
officer in charge. The police checked the engine number. The number was not visible
at all. The police said the number had been tampered with.
So, the police told the passengers to get out and walk home while they impounded
his vehicle. The police accuse him of driving a stolen vehicle.
Mr Kushesha is not happy. He needs your advice.
What should he do?
You remember there was a Constitutional Court case on a similar issue. But you have
forgotten the name of the case.
How should you react?
What advice do you give your client?
Case study 02
Your client is wealthy, well-known and wise. She is a fashion designer and a business
owner. She runs a large fashion house. Its annual turnover is in the millions. She has
designed a special dress for evening wear. She wants to get the dress to market as
soon as possible. Her name is Innocence Dlamini. Her business is Dlamini Fabulous
Fashions (Pty) Ltd.
A hostile competitor is jealous of her achievements. He sued her business for an

infringement of copyright alleging that he is the designer of the special dress. In the

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interim he obtained an interdict preventing Innocence from proceeding to market her

special dress. But this morning he lost the main case in the High Court of
Johannesburg. His name is Dennis Menace. His business is Dewey, Cheatham and
Howe (Pty) Ltd.
Your client wants to know whether she can start marketing her dress
tomorrow.
1. Advise your client on the potential appeal procedures Dennis Menace could
employ to frustrate your client going to market with her special dress. How far
can Dennis Menace go in our legal system on appeals? Cite the law for your
client.
2. Then, advise your client how she may combat the effect of endless
appeals.
Case study 03
Your client has a business idea. It concerns the use of solar energy. It could make
South Africa as efficient as Germany in solar power usage and remove many South
African businesses and homes from relying on Eskom.
Your client’s name is Bright Langa. He calls his device the Eishkom Bypass. He is a
sole proprietor. He applied to the National Energy Regulator in terms of s 10 of the
Electricity Regulation Act 4 of 2006 for a licence to generate electricity. The
application was refused on the basis that the Regulator does not take him seriously
because his name seems a parody (to be a joke) and the name of his device will
bring Eskom into disrepute.
He has no money to litigate.

How would you advise him to take his idea forward?
You do not have to address the business aspects of his endeavour. You must simply
set out the constitutional law and administrative law implications of his situation.
Remember, his name really is Bright Langa and he is most aggrieved about the
parody insult.
Case study 04
Your client is a young hotshot director of a new credit bureau in South Africa. Your
client has more money than sense. Your client is a hothead of note. However, your
client is very charming and very persuasive and even more persistent in getting what
he wants. His name is Lancelot Fearless. His credit bureau business is named Sue,
Grabbit and Runne (Pty) Ltd.

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He wants access to the government pension fund data base to register all the names
of government employees on his data base for credit enquiry purposes. Lancelot is
also a smart alec. He knows everything. In fact, it is a wonder he has arrived at your
office for advice!
Lancelot is so clever he has read the Promotion of Access to Information Act 2 of

2000 and decided that s 32(1)(a) of the Bill of Rights in Chapter 2 of the Constitution
allows him access to “any information held by the state”. Why does he need PAIA, he
says? His instructions to you are:
“Forget PAIA, it’s too slow. Use section 32 of the Constitution. Sue the State for the
information tomorrow. When can I depose to my affidavit? Be quick: I am paying you
big bucks!”
What would you advise your client about direct reliance on the Constitution
to bypass legislation enacted to give effect to rights in the Bill of Rights?
You are an attorney: are you obliged to entertain this obnoxious client?
You are an advocate: you have a valid brief from your attorney: are you
obliged to take the brief?
Case study 05
Your client is an organ of state. It runs nature parks in the Western Cape. It is called
the Nature Authority for Parks (NAP for short). The NAP wants to enter into a service
level agreement with a rhinoceros farmer from Rhinos Galore (Pty) Ltd for the supply
of five live rhinoceros.
The standard form service level agreement (SLA) has an arbitration clause. It reads
as follows:
“1. Without detracting from the right of either party to institute action or motion
proceedings in the High Court or other Court of competent jurisdiction in
respect of any dispute that may arise out of this SLA, the parties may, by
mutual consent, follow the arbitration procedure as set out in the arbitration
clause below.
2. If the parties agree by mutual consent to refer a dispute to arbitration as

contemplated above, then the arbitration must be held in Cape Town in
accordance with the provisions of the Arbitration Act 42 of 1965.”
The manager of the NAP, Mr Khathazeka (MK for short), is worried about signing the
SLA because it has an arbitration clause. MK wants advice on the following points.

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1. Is an arbitration private and confidential?

2. If the NAP goes to an arbitration, how does any award against the NAP affect
the duty of the NAP to report to the Auditor General?
3. Is an arbitration in terms of an SLA legal under the Constitution?
4. Or does an arbitration have the effect of hiding from the public matters where
an organ of state is found liable to pay the other party without the public
getting to know about the payment?
Advice needed:
Is Mr Khathazeka worried for nothing? If so, why?
If not, why not?
What are the constitutional law answers to his worries?
Case study 06
Your client is a well-known non-governmental organisation supporting Human Rights.
Its name is the Progressive Action Rights (PAR for short). The officials at PAR believe
Legal Aid South Africa (LASA) is not sufficiently funded to assist people with access to
justice.
The chairperson of PAR, Ms Khathazeka (the wife of MK in case study 05 above) has
recently read Tom Bingham’s book The Rule of Law. In the book she came across the
183
following passage from Dr E.J Cohn which reads as follows:
“Legal aid is a service which the modern state owes to its citizens as a
matter of principle. It is part of that protection of the citizen’s individuality which,
in modern conception of the relationship between the citizen and the State can be
claimed by those citizens who are too weak to protect themselves. Just as the
modern state tries to protect the poorer classes against the common dangers of life
such as unemployment, disease, old age, social oppression etc so it should protect
them when legal difficulties arise. Indeed, the case for such protection is stronger
than the case for any other form of protection. The state is not responsible for
the outbreak of epidemics, for old age or economic crisis. But the state is
responsible for the law. That law again is made for the protection of all
citizens, poor and rich alike. It is therefore the duty of the state to make its
machinery work alike for the rich and the poor.”
(Ms Khathazeka put in the emphasis specifically for you to read.)
PAR needs advice from you:
183 Legal Aid for the Poor: A Study in Comparative Law and legal reform. Dr E.J Cohn. Law Quarterly
Review July 1943 at page 256.

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Should PAR institute a class action against the State to improve the amount
of money it makes available to LASA?
If so, who should be cited as parties?
Should PAR use another remedy against the State?
For example, should PAR sue the Minister of Justice and Correctional Services to
allege a failure to comply with constitutional obligations under s 34 of the Bill of
Rights?
If so, how would you formulate a duty or obligation arising from the right in s 34?
Is there any other practical remedy you would propose?
Remember, your client has come to you for advice and to solve a problem.
The Constitution provides for access to courts in s 34.
34 Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.
Case study 07
Your client is a plot holder on the southern side of the Hartebeespoort Dam near
Pelindaba, the nuclear facility. Her name is Ms Amanda Tomique. She has a sense of
humour. However, she is not happy that Pelindaba management recently requested
her to vacate her plot. They said they feared there had been ‘an event’ which had
caused a discharge of nuclear radiation onto her property.
She is furious. She drives a four-by-four and rages to herself while she drives. Now
she has arrived at your office for advice.
Remember, your client has come to you for advice and to solve a problem.
First, is there a constitutional issue you can identify or is the matter simply property
law and delict?
Second, if there is a constitutional issue, what would you advise your client to do.
Third, what section in the Bill of Rights might hold the answer to your client’s
request for advice?
During lectures on Constitutional Law Practice, your lecturers, supervisors or mentors

will give you other case studies to mull over.

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BIBLIOGRAPHY
Bingham, T The Rule of Law (2010), published in Penguin Books, 2011
Chaskalson, Kentridge, Klaaren, Marcus, Spitz and Woolman, Constitutional Law of

South Africa, 1996, Juta & Co Ltd
Currie & De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013)
HJ Erasmus Superior Court Practice 2nd ed
Devenish, Govender, Hulme, Administrative Law and Justice in South Africa, 2001,
Butterworths
Ettienne Barnard Attorneys, Constitutional Practice, 1 June 2015
Hahlo and Kahn, The South African Legal System and its Background, 1973, Juta & Co Ltd
Harms, D Does the Constitutional Court have plenary unlimited appeal jurisdiction?
De Rebus 2017 (April) DR 13
Hoexter C Administrative Law in South Africa 2nd ed (Juta 2012)
Hussain, Barnard & Hughes, Case Management in Our Courts, L.E.A.D Guide
Klaasen A The constitutional impact of strategic litigation in South Africa, Doctoral

Thesis, University of the North West, October 2016
Le Roux & Davis Lawfare: Judging Politics in South Africa, Jonathan Ball Publishers
2019
Marnewick CG Litigation skills for South African Lawyers 2nd ed (LexisNexis

Butterworths 2007)
Moseneke, D Separation of Powers: Have the courts crossed the line? Ground Up
Opinion 24 July 2015, accessed 3 October 2019
https://www.groundup.org.za/article/separation-powers-have-courts-crossed-
line_3152/
Mureinik A A Bridge to Where? Introducing the Interim Bill of Rights (1994) 10 SAJHR 31
Rautenbach, I. (2014). Proportionality and the limitation clauses of the South African
Bill of Rights. Potchefstroom Electronic Law Journal, 17(6), 2229–2267.
https://doi.org/10.4314/pelj.v17i6.01
Rogers, O The Ethics of the Hopeless Case, Advocate – December 2017

https://gcbsa.co.za/law-journals/2017/december/2017-december-vol030-no3-pp46-
51.pdf

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Van Loggerenberg Erasmus, Superior Court Practice 2nd ed Volumes 1, 2 and 3

Van Wyk, Dugard, De Villiers and Davis, Rights and Constitutionalism, The New South
African Legal Order, 1994, Juta & Co Ltd
Woolman et al (eds) Constitutional Law of South Africa 2nd ed (Juta & Co Ltd, Cape
Town 2013)

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BRIEF EXPLANATION OF THE TABLE BELOW
As Candidate Legal Practitioners:
You will note from the table below that the sections from the Constitution of the
Republic of South Africa, 1996 are listed in the column on the left. Your task is to
work out why the Acts of Parliament in the column on the right are juxtaposed
184
(placed side-by-side) with certain sections in the Constitution and not others.
All the Acts of Parliament so juxtaposed are open for debate. Do not be coy: criticise
the juxtapositions and then propose a better juxtaposition for each Act of
Parliament.
Remember there is a gap in our manner of dealing with legislation from the era
before the Constitution. The Constitution of the Republic of South Africa Act 200 of
1993 came into effect on 27 April 1994. That Constitution is referred to as the
‘interim Constitution’. The interim Constitution was replaced by the Constitution of
the Republic of South Africa, 1996 (the ‘final Constitution’) which came into effect on
4 February 1997.
In South Africa we have not performed an audit of all pre-constitutional era statutes
(that is from before 27 April 1994) to upgrade each statute to comply with the
constitutional principles of the Constitution, 1996. In practice you will find that often
the High Courts are called upon to consider the constitutional law implications of pre-
constitutional era statutes. Indeed, some of your work in the future may be in this
area of the law!
184 In MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) (2008 (2) BCLR 99;
[2007] ZACC 21) Langa CJ, on behalf of the majority, said at para [40]:
The first is that claims brought under the Equality Act must be considered within the four corners of that
Act. This court has held in the context of both administrative and labour law that a litigant cannot
circumvent legislation enacted to give effect to a constitutional right by attempting to rely directly on the
constitutional right. To do so would be to ‘fail to recognise the important task conferred upon the
legislature by the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights’. The
same principle applies to the Equality Act. Absent a direct challenge to the Act, courts must assume that
the Equality Act is consistent with the Constitution and claims must be decided within its margins.
See also Pretorius v Transport Pension Fund 2019 (2) SA 37 (CC) at paras [50].

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TABLE OF NATIONAL LEGISLATION ENACTED IN TERMS OF THE

CONSTITUTION
The table is an aide memoire.
A Table of National Legislation and Acts of Parliament
promulgated as provided for and contemplated as reasonable legislative and other
measures, within the State’s available resources, to achieve the progressive
realisation of certain rights
in the
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
Promotion of National Unity and Reconciliation Act 34 of 1995

PREAMBLE passed under the interim Constitution. The Preamble to Act
34 of 1995 is still relevant today.
CHAPTER 1 Founding
Provisions
Sections 1-6
1 Republic of South Africa Prevention and Combating of Corrupt Activities Act 12 of 2004
Protection of Constitutional Democracy against Terrorist and
Related Activities Act 33 of 2004
Citation of Constitutional Laws Act 5 of 2005
2 Supremacy of Constitution South African Citizenship Act 88 of 1995
3 Citizenship Statistics Act 6 of 1999
Immigration Act 13 of 2002
Alteration of Sex Description and Sex Status Act 49 of 2003
4 National anthem Pan South African Language Board Act 59 of 1995

5 National flag Use of Official Languages Act 12 of 2012
6 Languages
CHAPTER 2 Bill of Rights

Sections 7-39
7 Rights
8 Application Protected Disclosures Act 26 of 2000
9 Equality Employment Equity Act 55 of 1998

National Empowerment Fund Act 105 of 1998
Mineral and Petroleum Resources Development Act 28 of 2002
Broad-Based Black Economic Empowerment Act 53 of 2003
Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000
10 Human dignity Choice on Termination of Pregnancy Act 92 of 1996

Abolition of Corporal Punishment Act 33 of 1997
Sterilisation Act 44 of 1998
Maintenance Act 99 of 1998
Domestic Violence Act 116 of 1998
Recognition of Customary Marriages Act 120 of 1998
Prevention of Organised Crime Act 121 of 1998
Correctional Services Act 111 of 1998
Protected Disclosures Act 26 of 2000
Alteration of Sex Description and Sex Status Act 49 of 2003
Older Persons Act 13 of 2006
Civil Union Act 17 of 2006
National Youth Development Agency Act 54 of 2008
Reform of Customary Law of Succession and Regulation of
Related Matters Act 11 of 2009

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Protection from Harassment Act 17 of 2011

Prevention and Combating of Trafficking in Persons Act 7 of
2013
11 Life Firearms Control Act 60 of 2000
12 Freedom and security of the Domestic Violence Act 116 of 1998

person Protection from Harassment Act 17 of 2011
Prevention and Combating of Torture of Persons Act 13 of
2013
13 Slavery, servitude and forced Prevention and Combating of Trafficking in Persons Act 7 of
labour 2013
14 Privacy Protection of Personal Information Act 4 of 2013

15 Freedom of religion, belief and Postal Services Act 124 of 1998
opinion South African Postbank Limited Act 9 of 2011
South African Post Office SOC Ltd Act 22 of 2011
16 Freedom of expression Films and Publications Act 65 of 1996

Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000
17 Assembly, demonstration, picket Riotous Assemblies Act 17 of 1956. Why is it still our law?
and petition
18 Freedom of association Nonprofit Organisations Act 71 of 1997

19 Political rights
20 Citizenship South African Citizenship Act 88 of 1995

Identification Act 68 of 1997
21 Freedom of movement and South African Passports and Travel Documents Act 4 of 1994
residence
22 Freedom of trade, occupation Legal Practice Act 28 of 2014

and profession Geomatics Profession Act 19 of 2013
Auditing Profession Act 26 of 2005
Nursing Act 33 of 2005
Natural Scientific Professions Act 27 of 2003
Reinstatement of Enrolment of Certain Deceased Legal
Practitioners Act 32 of 2002
Planning Profession Act 36 of 2002
Architectural Profession Act 44 of 2000
Landscape Architectural Profession Act 45 of 2000
Engineering Profession Act 46 of 2000
Property Valuers Profession Act 47 of 2000
Project and Construction Management Professions Act 48 of
2000
Quantity Surveying Profession Act 49 of 2000
Council for the Built Environment Act 43 of 2000
Contingency Fees Act 66 of 1997
Lotteries Act 57 of 1997
Counterfeit Goods Act 37 of 1997
23 Labour relations National Economic, Development and Labour Council Act 35 of

1994
Public Holidays Act 36 of 1994
Labour Relations Act 66 of 1995
Basic Conditions of Employment Act 75 of 1997
Mine Health and Safety Act 29 of 1996
Employment Equity Act 55 of 1998
State Information Technology Agency Act 88 of 1998
Skills Development Act 97 of 1998
Skills Development Levies Act 9 of 1999
Unemployment Insurance Act 63 of 2001

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Unemployment Insurance Contributions Act 4 of 2002

Employment Services Act 4 of 2014
National Minimum Wage Act 9 of 2018
24 Environment Marine Living Resources Act 18 of 1998

National Water Act 36 of 1998
National Forests Act 84 of 1998
National Veld and Forest Fire Act 101 of 1998
National Environmental Management Act 107 of 1998
National Environmental Management: Biodiversity Act 10 of
2004
National Environmental Management Air Quality Act 39 of
2004
National Environmental Management Integrated Coastal
Management Act 24 of 2008
National Environmental Management Protected Areas Act 57
of 2003
National Environmental Management Waste Act 59 of 2008
Mineral and Petroleum Resources Development Act 28 of 2002
Measurement Units and Measurement Standards Act 18 of
2006
Accreditation for Conformity Assessment, Calibration and
Good Laboratory Practice Act 19 of 2006
National Regulator for Compulsory Specifications Act 5 of
2008
Standards Act 8 of 2008
Mineral and Petroleum Resources Royalty Act 28 of 2008
Mineral and Petroleum Resources Royalty (Administration) Act
29 of 2008
National Radioactive Waste Disposal Institute Act 53 of 2008
Merchant Shipping (International Oil Pollution Compensation
Fund) Act 24 of 2013
Merchant Shipping (Civil Liability Convention) Act 25 of 2013
Fund) Administration Act 35 of 2013
Fund) Contributions Act 36 of 2013
Legal Metrology Act 9 of 2014
Marine Spatial Planning Act 16 of 2018
Carbon Tax Act 15 of 2019
25 Property Upgrading of Land Tenure Rights Act 112 of 1991

Kwazulu-Natal Ingonyama Trust Act 3KZ of 1994
(passed on 25 April 1994)
Restitution of Land Rights Act 22 of 1994
Land Reform (Labour Tenants) Act 3 of 1996
Communal Property Associations Act 28 of 1996
Interim Protection of Informal Land Rights Act 31 of 1996
Land Survey Act 8 of 1997
Extension of Security of Tenure Act 62 of 1997
Transformation of Certain Rural Areas Act 94 of 1998
Abolition of Certain Title Conditions Act 43 of 1999
Land and Agricultural Development Bank Act 15 of 2002
Spatial Data Infrastructure Act 54 of 2003
Communal Land Rights Act 11 of 2004
Government Immovable Asset Management Act 19 of 2007
Spatial Planning and Land Use Management Act 16 of 2013
Property Valuation Act 17 of 2014
Property Practitioners Act 22 of 2019
26 Housing Land Survey Act 8 of 1997

Extension of Security of Tenure Act 62 of 1997
Housing Act 107 of 1997
Prevention of Illegal Eviction From and Unlawful Occupation of
Land Act 19 of 1998
Housing Consumers Protection Measures Act 95 of 1998

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National Development Agency Act 108 of 1998

Rental Housing Act 50 of 1999
Home Loan and Mortgage Disclosure Act 63 of 2000
Planning Profession Act 36 of 2002
Social Housing Act 16 of 2008
Housing Development Agency Act 23 of 2008
Sectional Titles Schemes Management Act 8 of 2011
Community Schemes Ombud Service Act 9 of 2011
Property Valuation Act 17 of 2014
Electronic Deeds Registration Systems Act 19 of 2019
Property Practitioners Act 22 of 2019
27 Health care, food, water and Marketing of Agricultural Products Act 47 of 1996
social security Water Services Act 108 of 1997
National Water Act 36 of 1998
Sterilisation Act 44 of 1998
Medical Schemes Act 131 of 1998
Council for Medical Schemes Levies Act 58 of 2000
National Health Laboratory Service Act 37 of 2000
Mental Health Care Act 17 of 2002
National Health Act 61 of 2003
South African Social Security Agency Act 9 of 2004
Social Assistance Act 13 of 2004
Traditional Health Practitioners Act 35 of 2004
Nursing Act 33 of 2005
Prevention of and Treatment for Substance Abuse Act 70 of
2008
Plant Improvement Act 11 of 2018
Plant Breeders’ Rights Act 12 of 2018
28 Children Maintenance Act 99 of 1998

Child Justice Act 75 of 2008
Domestic Violence Act 116 of 1998
Children’s Act 38 of 2005
29 Education South African Schools Act 84 of 1996

National Archives and Record Service of South Africa Act 43 of
1996
National Education Policy Act 27 of 1996
Higher Education Act 100 of 1997
National Advisory Council on Innovation Act 55 of 1997
Legal Deposit Act 54 of 1997
National Research Foundation Act 23 of 1998
Employment of Educators Act 76 of 1998
South African Library for the Blind Act 91 of 1998
National Library of South Africa Act 92 of 1998
South African Geographical Names Council Act 118 of 1998
National Heritage Council Act 11 of 1999
National Heritage Resources Act 25 of 1999
World Heritage Convention Act 49 of 1999
National Student Financial Aid Scheme Act 56 of 1999
South African Council for Educators Act 31 of 2000
National Council for Library and Information Services Act 6 of
2001
South African Weather Service Act 8 of 2001
General and Further Education and Training Quality Assurance
Act 58 of 2001
Academy of Science of South Africa Act 67 of 2001
Continuing Education and Training Act 16 of 2006
Astronomy Geographic Advantage Act 21 of 2007
Human Sciences Research Council Act 17 of 2008
Technology Innovation Agency Act 26 of 2008
South African National Space Agency Act 36 of 2008
National Qualifications Framework Act 67 of 2008

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30 Language and culture South African Library for the Blind Act 91 of 1998
31 Cultural, religious and linguistic Commission for the Promotion and Protection of the Rights of
communities Cultural, Religious and Linguistic Communities Act 19 of 2002
South African Language Practitioner’s Council Act 8 of 2014
National Film and Video Foundation Act 73 of 1997
National Arts Council Act 56 of 1997
National Sport and Recreation Act 110 of 1998
Cultural Institutions Act 119 of 1998
South African Geographical Names Council Act 118 of 1998
South African Boxing Act 11 of 2001
Safety at Sports and Recreational Events Act 2 of 2010
Use of Official Languages Act 12 of 2012
32 Access to information Promotion of Access to Information Act 2 of 2000

Electronic Communications and Transactions Act 25 of 2002
Regulation of Interception of Communications and Provision of
Communication-related Information Act 70 of 2002
Broadband Infraco Act 33 of 2007
Protection of Personal Information Act 4 of 2013
Electronic Deeds Registration Systems Act 19 of 2019
33 Just administrative action Promotion of Administrative Justice Act 3 of 2000

Agrément South Africa Act 11 of 2015
Protection of Investment Act 22 of 2015
34 Access to courts Debt Collectors Act 114 of 1998

Institution of Legal Proceedings against certain Organs of
State Act 40 of 2002
35 Arrested, detained and accused
persons
36 Limitation of rights
37 States of emergency State of Emergency Act 64 of 1997

Table of Non-Derogable Rights
38 Enforcement of rights
CHAPTER 3 Co-operative Independent Commission for the Remuneration of Public

Government Office-Bearers Act 92 of 1997
40-41 Remuneration of Public Office Bearers Act 20 of 1998
40 Government of the Republic National Small Business Act 102 of 1996
41 Principles of co-operative
Intergovernmental Fiscal Relations Act 97 of 1997
government and intergovernmental
relations Financial and Fiscal Commission Act 99 of 1997
State Information Technology Agency Act 88 of 1998
Provincial Tax Regulation Process Act 53 of 2001
Intergovernmental Relations Framework Act 13 of 2005
Co-operatives Act 14 of 2005
CHAPTER 4 Parliament South African Language Practitioner’s Council Act 8 of 2014
Parliamentary Villages Management Board Act 96 of 1998
42-82
42 Composition of Parliament Political Party Funding Act 6 of 2018
43 Legislative authority of the Republic
44 National legislative authority
45 Joint rules and orders and joint
committees
The National Assembly (ss 46-59)
46 Composition and election Electoral Commission Act 51 of 1996
47 Membership Electoral Act 73 of 1998
48 Oath or affirmation
49 Duration of National Assembly
50 Dissolution of National Assembly
before expiry of its term
51 Sittings and recess periods
52 Speaker and Deputy Speaker

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53 Decisions
54 Rights of certain Cabinet members
and Deputy Ministers in the National
Assembly
55 Powers of National Assembly

56 Evidence or information before National Small Business Act 102 of 1996
National Assembly Demobilisation Act 99 of 1996
57 Internal arrangements,
proceedings and procedures of
National Assembly
58 Privilege Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004
59 Public access to and involvement in
National Assembly
National Council of Provinces (ss 60-72)
60 Composition of National Council Electoral Act 73 of 1998
61 Allocation of delegates National Council of Provinces (Permanent Delegates
Vacancies) Act 17 of 1997
62 Permanent delegates Determination of Delegates (National Council of Provinces) Act
63 Sittings of National Council 69 of 1998
64 Chairperson and Deputy
Chairpersons
65 Decisions
66 Participation by members of national Mandating Procedures of Provinces Act 52 of 2008
executive
67 Participation by local
government representatives Organised Local Government Act 52 of 1997
68 Powers of National Council
69 Evidence or information before
National Council
National Council
72 Public access to and involvement in Provincial Legislatures Act 4 of 2004
National Council
National Legislative Process (ss 73-82)
73 All Bills
74 Bills amending the Constitution
75 Ordinary Bills not affecting provinces
76 Ordinary Bills affecting provinces
77 Money Bills Money Bills Amendment Procedure and Related Matters Act 9
78 Mediation Committee of 2009
79 Assent to Bills
80 Application by members of National
Assembly to Constitutional Court
81 Publication of Acts
82 Safekeeping of Acts of Parliament
CHAPTER 5 The President and
National Executive
83-102
83 The President
84 Powers and functions of African Renaissance and International Co-operation Fund Act
President 51 of 2000
85 Executive authority of the Republic
86 Election of President
87 Assumption of office by President
88 Term of office of President
89 Removal of President
90 Acting President Statistics Act 6 of 1999
91 Cabinet
Reconstruction and Development Programme Fund Act 7 of
92 Accountability and
responsibilities 1994
Executive Members Ethics Act 82 of 1998
93 Deputy Ministers

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94 Continuation of Cabinet after

elections
96 Conduct of Cabinet members No legislation passed yet. Done by Notice ito Section 100.
and Deputy Ministers
97 Transfer of functions
98 Temporary assignment of functions
99 Assignment of functions
100 National intervention in
provincial administration
101 Executive decisions
102 Motions of no confidence
CHAPTER 6 Provinces 103-150
103 Provinces Provincial Tax Regulation Process Act 53 of 2001
Provincial Legislatures (ss 104-124)
104 Legislative authority of
provinces
105 Composition and election of Electoral Act 73 of 1998
provincial legislatures
106 Membership
108 Duration of provincial legislatures
109 Dissolution of provincial
legislatures before expiry of term
110 Sittings and recess periods
111 Speakers and Deputy Speakers
112 Decisions
113 Permanent delegates' rights in
114 Powers of provincial legislatures
115 Evidence or information before
118 Public access to and involvement in Provincial Legislatures Act 4 of 2004
119 Introduction of Bills
120 Money Bills
121 Assent to Bills
122 Application by members to
Constitutional Court
123 Publication of provincial Acts
124 Safekeeping of provincial Acts
Provincial Executives (ss 125-141)

125 Executive authority of provinces
126 Assignment of functions
127 Powers and functions of Premiers
128 Election of Premiers
129 Assumption of office by Premiers
130 Term of office and removal of
Premiers
131 Acting Premiers
132 Executive Councils
133 Accountability and responsibilities
134 Continuation of Executive Councils
after elections
136 Conduct of members of Executive Members Ethics Act 82 of 1998

Executive Councils
137 Transfer of functions
138 Temporary assignment of functions
139 Provincial intervention in local No legislation passed yet. Done by Notice ito Section 139.

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government
140 Executive decisions
141 Motions of no confidence
Provincial Constitutions (ss 142-145)

142 Adoption of provincial Constitution of the Western Cape 1 of 1998 (provincial
constitutions legislation)
143 Contents of provincial constitutions
144 Certification of provincial
constitutions
145 Signing, publication and
safekeeping of provincial constitutions
Conflicting Laws (ss 146-150)

146 Conflicts between national and Tourism Act 3 of 2014
provincial legislation
147 Other conflicts
148 Conflicts that cannot be resolved
149 Status of legislation that does not
prevail
150 Interpretation of conflicts
CHAPTER 7 Local Government Prince Edward Islands Act 43 of 1948 part of Cape Town
151-164 municipality:
151 Status of municipalities Maritime Zones Act 15 of 1994
152 Objects of local government
Marine Spatial Planning Act 16 of 2018
153 Developmental duties of Local Government: Municipal Finance Management Act 56 of
municipalities 2003
154 Municipalities in co-operative Water Services Act 108 of 1997
government Organised Local Government Act 52 of 1997
155 Establishment of municipalities Local Government: Municipal Structures Act 117 of 1998
156 Powers and functions of Local Government: Municipal Demarcation Act 27 of 1998
municipalities
Local Government: Municipal Property Rates Act 6 of 2004
157 Composition and election of
Municipal Councils Electoral Commission Act 51 of 1996
158 Membership of Municipal Borrowing Powers of Provincial Governments Act 48 of 1996
Councils Local Government: Municipal Electoral Act 27 of 2000
159 Terms of Municipal Councils Local Government: Municipal Systems Act 32 of 2000
160 Internal procedures Organised Local Government Act 52 of 1997
161 Privilege
162 Publication of municipal by-laws No legislation yet.
163 Organised local government
164 Other matters
CHAPTER 8 Courts and
Administration of
Justice
165-180
165 Judicial authority
166 Judicial system
167 Constitutional Court Superior Courts Act 10 of 2013
168 Supreme Court of Appeal Competition Act 89 of 1998
169 High Court of South Africa Legal Aid South Africa Act 39 of 2014
170 Other courts Debt Collectors Act 114 of 1998
171 Court procedures
172 Powers of courts in constitutional
matters
173 Inherent power
174 Appointment of judicial officers South African Judicial Education Institute Act 14 of 2008
175 Appointment of acting judges
176 Terms of office and remuneration
177 Removal
178 Judicial Service Commission Judicial Service Commission Act 9 of 1994
179 Prosecuting authority National Prosecuting Authority Act 32 of 1998

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180 Other matters concerning International Co-operation in Criminal Matters Act 75 of 1996
administration of justice Special Investigating Units and Special Tribunals Act 74 of
1996
Prevention of Organised Crime Act 121 of 1998
Correctional Services Act 111 of 1998
Abolition of Corporal Punishment Act 33 of 1997
Witness Protection Act 112 of 1998
Judges’ Remuneration and Conditions of Employment Act 47
of 2001
Prevention and Combating of Trafficking in Persons Act 7 of
2013
2013
Justice Administered Fund Act 2 of 2017
CHAPTER 9 State Institutions
Supporting
Constitutional
Democracy
181-194
181 Establishment and governing
principles
Public Protector (ss 182-183)
182 Functions of Public Protector Public Protector Act 23 of 1994
183 Tenure
South African Human Rights Commission Human Rights Commission Act 54 of 1994 repealed by the
(s 184) South African Human Rights Commission Act 40 of 2013
184 Functions of South African National Small Business Act 102 of 1996
Human Rights Commission Repeal of Volkstaat Council Provisions Act 30 of 2001
Commission for the Promotion and

Protection of the Rights of Cultural,
Religious and Linguistic Communities (ss
185-186)
185 Functions of Commission Commission for the Promotion and Protection of the Rights of
186 Composition of Commission Cultural, Religious and Linguistic Communities Act 19 of 2002
Commission for Gender Equality (s 187)

187 Functions of Commission for Commission for Gender Equality Act 39 of 1996
Gender Equality
Auditor-General (ss 188-189) Public Audit Act 25 of 2004

188 Functions of Auditor-General Public Audit Excess Fee Act 20 of 2019
189 Tenure Special Pensions Act 69 of 1996
Electoral Commission (ss 190-191)

190 Functions of Electoral Electoral Commission Act 51 of 1996
Commission
191 Composition of Electoral
Commission
Independent Authority to Regulate
Broadcasting (s 192) Sentech Act 63 of 1996
192 Broadcasting Authority Broadcasting Act 4 of 1999
Independent Communications Authority of South Africa Act 13
of 2000
Media Development and Diversity Agency Act 14 of 2002
General Provisions (ss 193-194) Independent Commission for the Remuneration of Public
193 Appointments Office-Bearers Act 92 of 1997
194 Removal from office Remuneration of Public Office Bearers Act 20 of 1998
CHAPTER 10 Public
Administration
195-197
195 Basic values and principles Public Administration Management Act 11 of 2014
governing public administration Insurance Act 18 of 2017
196 Public Service Commission Public Service Commission Act 46 of 1997

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197 Public Service Public Service Act, 1994

Government Employees Pension Law (Proclamation 21 of
1996)
CHAPTER 11 Security Services Regulation of Foreign Military Assistance Act 15 of 1998**
198-210 National Strategic Intelligence Act 39 of 1994
198 Governing principles Intelligence Services Act 65 of 2002
199 Establishment, structuring and Private Security Industry Regulation Act 56 of 2001
conduct of security services Private Security Industry Levies Act 23 of 2002
Implementation of the Rome Statute of the International
Criminal Court Act 27 of 2002
Prohibition of Mercenary Activities and Regulation of Certain
Activities in Country of Armed Conflict Act 27 of 2006**
** will come into operation on a date to be fixed by the
President by proclamation in the Gazette.
Why are we waiting?
Defence (ss 200-204) Defence Special Account Act 6 of 1974

200 Defence force National Conventional Arms Control Act 41 of 2002
201 Political responsibility Defence Act 42 of 2002
202 Command of defence force Demobilisation Act 99 of 1996
203 State of national defence Disaster Management Act 57 of 2002
204 Defence civilian secretariat Explosives Act 15 of 2003
Anti-Personnel Mines Prohibition Act 36 of 2003
Armaments Corporation of South Africa, Limited Act 51 of
2003
Defence Special Tribunal Act 81 of 1998, Defence Laws Repeal
and Amendment Act 17 of 2015, will come into operation on a
date to be fixed by the President by proclamation in the
Gazette. Why are we waiting?
Military Discipline Supplementary Measures Act 16 of 1999
Prohibition or Restriction of Certain Conventional Weapons Act
18 of 2008
Military Veterans Act 18 of 2011
Military Ombud Act 4 of 2012
Implementation of the Geneva Convention Act 8 of 2012
Police (ss 205-208)
205 Police service South African Police Service Act 68 of 1995
206 Political responsibility Firearms Control Act 60 of 2000
207 Control of police service Prevention and Combating of Corrupt Activities Act 12 of 2004
Second-Hand Goods Act 6 of 2009
Independent Police Investigative Directorate Act 1 of 2011
208 Police civilian secretariat Civilian Secretariat for Police Service Act 2 of 2011
Dangerous Weapons Act 15 of 2013
Intelligence (ss 209-210) Secret Services Act 56 of 1978. Still our law?
209 Establishment and control of National Strategic Intelligence Act 39 of 1994
intelligence services Intelligence Services Oversight Act 40 of 1994
210 Powers, functions and Intelligence Services Act 65 of 2002
monitoring Regulation of Interception of Communications and Provision of
Communication-related Information Act 70 of 2002
CHAPTER 12 Traditional Leaders Recognition of Customary Marriages Act 120 of 1998

211-212 Traditional Leadership and Governance Framework Act 41 of
211 Recognition 2003
212 Role of traditional leaders
Reform of Customary Law of Succession and Regulation of
Related Matters Act 11 of 2009
National House of Traditional Leaders Act 22 of 2009
CHAPTER 13 Finance Inherited Debt Relief Act 54 of 1998
213-230A Protection of Investment Act 22 of 2015
General Financial Matters (ss 213-219) African Renaissance and International Co-operation Fund Act
213 National Revenue Fund 51 of 2000
214 Equitable shares and Development Bank of Southern Africa Act 13 of 1997
allocations of revenue National Payment System Act 78 of 1998

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South African Revenue Service Act 34 of 1997

Tax Administration Act 28 of 2011
Public Finance Management Act 1 of 1999
Financial Management of Parliament and Provincial
Legislatures Act 10 of 2009
Organised Local Government Act 52 of 1997
Long-term Insurance Act 52 of 1998
Short-term Insurance Act 53 of 1998
*Note Well: the definition of ‘law’ in Financial Institutions (Protection of Funds) Act 28 of 2001*
Act 28 of 2001 Financial Intelligence Centre Act 38 of 2001
Collective Investment Schemes Control Act 45 of 2002
Financial Advisory and Intermediary Services Act 37 of 2002
Public Investment Corporation Act 23 of 2004
Securities Transfer Tax Act 25 of 2007
Securities Transfer Tax Administration Act 26 of 2007
Co-operative Banks Act 40 of 2007
Financial Markets Act 19 of 2012
Credit Rating Services Act 24 of 2012
Employment Tax Incentive Act 26 of 2013
Customs Duty Act 30 of 2014
Customs Control Act 31 of 2014
New Development Bank Special Appropriation Act 20 of 2015
Insurance Act 18 of 2017
Construction Industry Development Board Act 38 of 2000
215 National, provincial and Local Government: Municipal Finance Management Act 56 of
municipal budgets 2003
216 Treasury control Public Finance Management Act 1 of 1999
217 Procurement Preferential Procurement Policy Framework Act 5 of 2000
218 Government guarantees Intergovernmental Fiscal Relations Act 97 of 1997
219 Remuneration of persons Financial and Fiscal Commission Act 99 of 1997
holding public office Independent Commission for the Remuneration of Public
Office-Bearers Act 92 of 1997
Financial and Fiscal Commission (ss
220-222)
220 Establishment and functions Financial and Fiscal Commission Act 99 of 1997
221 Appointment and tenure of Organised Local Government Act 52 of 1997
members
222 Reports
Central Bank (ss 223-225)
223 Establishment South African Reserve Bank Act 90 of 1989
224 Primary object Financial Sector Regulation Act 9 of 2017
225 Powers and functions
Provincial and Local Financial Matters (ss
226-230A)
226 Provincial Revenue Funds Public Finance Management Act 1 of 1999
227 National sources of provincial Conversion of SASRIA Act 134 of 1998
and local government funding Provincial Tax Regulation Process Act 53 of 2001
228 Provincial taxes Local Government: Municipal Finance Management Act 56 of
229 Municipal fiscal powers and 2003
functions Organised Local Government Act 52 of 1997
230 Provincial loans Borrowing Powers of Provincial Governments Act 48 of 1996
Local Government: Municipal Finance Management Act 56 of
230A Municipal loans 2003
CHAPTER 14 General Provisions

231-243
International Law (ss 231-233) Wreck and Salvage Act 94 of 1996
231 International agreements Antarctic Treaties Act 60 of 1996
International Arbitration Act 15 of 2017
South African Olympic Hosting Act 36 of 1997
Refugees Act 130 of 1998
World Heritage Convention Act 49 of 1999
Cross-Border Insolvency Act 42 of 2000
232 Customary international law Diplomatic Immunities and Privileges Act 37 of 2001

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233 Application of international law Implementation of the Rome Statute of the International
Criminal Court Act 27 of 2002
International Trade Administration Act 71 of 2002
South African Red Cross Society and Legal Protection of
Certain Emblems Act 10 of 2007
Implementation of the Geneva Convention Act 8 of 2012
2013
Other Matters (ss 234-243)
234 Charters of Rights
235 Self-determination Repeal of Volkstaat Council Provisions Act 30 of 2001
236 Funding for political parties Political Party Funding Act 6 of 2018
Public Funding of Represented Political Parties Act 103 of 1997
237 Diligent performance of obligations

238 Agency and delegation
239 Definitions
240 Inconsistencies between different Termination of Integration Intake Act 44 of 2001
texts
241 Transitional arrangements
242 Repeal of laws
243 Short title and commencement
FURTHER CONSIDERATIONS
SCHEDULES
Schedule 1
National Flag
Schedule 1A
Geographical Areas of Provinces
Schedule 2
Oaths and Solemn Affirmations
Schedule 3
Election Procedures
Schedule 4
Functional Areas of Concurrent National National Road Traffic Act 93 of 1996
and Provincial Legislative Competence Road Accident Fund Act 56 of 1996
Genetically Modified Organisms Act 15 of 1997
South African Institute for Drug-Free Sport Act 14 of 1997
Cross-Border Road Transport Act 4 of 1998
South African Maritime Safety Authority Act 5 of 1998
South African Maritime Safety Authority Levies Act 6 of 1998
The South African National Roads Agency Limited and
National Roads Act 7 of 1998
Transport Appeal Tribunal Act 39 of 1998
South African Civil Aviation Authority Levies Act 41 of 1998
Administrative Adjudication of Road Traffic Offences Act 46
of 1998
Ship Registration Act 58 of 1998
Animal Improvement Act 62 of 1998
Road Accident Fund Commission Act 71 of 1998
Port of Ngqura Act 77 of 1998
National Forests Act 84 of 1998
Medical Schemes Act 131 of 1998
Onderstepoort Biological Products Incorporation Act 19 of
1999
Road Traffic Management Corporation Act 20 of 1999
Nuclear Energy Act 46 of 1999
National Nuclear Regulator Act 47 of 1999
Meat Safety Act 40 of 2000
Sea Transport Documents Act 65 of 2000
Eskom Conversion Act 13 of 2001
Gas Act 48 of 2001
Animal Identification Act 6 of 2002
Animal Health Act 7 of 2002

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National Railway Safety Regulator Act 16 of 2002

Gas Regulator Levies Act 75 of 2002
South African Maritime and Aeronautical Search and Rescue
Act 44 of 2002
Liquor Act 59 of 2003
Petroleum Pipelines Act 60 of 2003
National Gambling Act 7 of 2004
Petroleum Pipelines Levies Act 28 of 2004
National Energy Regulator Act 40 of 2004
National Ports Act 12 of 2005
National Credit Act 34 of 2005
Precious Metals Act 37 of 2005
Electricity Regulation Act 4 of 2006
Convention on International Interests in Mobile Equipment
Act 4 of 2007
South African Airways Act 5 of 2007
Diamond Export Levy (Administration) Act 14 of 2007
Diamond Export Levy Act 15 of 2007
South African Express Act 34 of 2007
National Energy Act 34 of 2008
Consumer Protection Act 68 of 2008
Companies Act 71 of 2008
National Land Transport Act 5 of 2009
Civil Aviation Act 13 of 2009
Merchant Shipping (Safe Containers Convention) Act 10 of
2011
Road Accident Fund (Transitional Provisions) Act 15 of 2012
Special Economic Zones Act 16 of 2014
Infrastructure Development Act 23 of 2014
Schedule 5 National Road Traffic Act 93 of 1996

Functional Areas of Exclusive Provincial Marketing of Agricultural Products Act 47 of 1996
Legislative Competence Genetically Modified Organisms Act 15 of 1997
The South African National Roads Agency Limited and
National Roads Act 7 of 1998
Road Accident Fund Commission Act 71 of 1998
National Sport and Recreation Act 110 of 1998
Animal Identification Act 6 of 2002
Animal Health Act 7 of 2002
National Gambling Act 7 of 2004
Schedule 6
Transitional Arrangements
Schedule 7
LAWS REPEALED
BY THE WAY
DO YOU KNOW WHERE THE PRINCE EDWARD ISLANDS ARE ?
CLUE
They are not in Cape Town
Although they fall under the Cape Town Municipality
____________________

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Constitutional Law Practice 2022 F

Civil Procedure (University of South Africa)

Studocu is not sponsored or endorsed by any college or university

The syllabus is compiled by

The author of the guide is

Training Guide Advocate Nicholas J. Tee who

Lifelong learning towards a just society

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© Law Society of South Africa

Training Guide Topics

Alternative Dispute Resolution High Court Practice Legal Practitioners Accounts

For more information

CONSTITUTIONAL LAW PRACTICE ©LSSA

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SELECT LIST OF CASES IN FULL AVAILABLE CITATION 2

INTRODUCTION, PURPOSE AND CONTENTS 9

GENERAL ADVICE ABOUT THE CONSTITUTION 10

IMPORTANT TECHNICALITIES ABOUT THE CONSTITUTION 11

DRAMATIC CHANGE TO THE JURISDICTION OF THE CONSTITUTIONAL

THE SUPERIOR COURTS ACT MAKES LAWYERS MUCH MORE APPEALING 12

PRESIDENT OR STATE PRESIDENT 14

SUMMARY OF THE TECHNICAL ISSUES ABOUT THE CONSTITUTION 15

LANGUAGE AND LEARNING 18

LET US BEGIN WITH THE BASIC CONCEPTS 21

NOW FOR MORE TECHNICAL (TRICKY) CONCEPTS 29

CONSTITUTIONAL LAW PRACTICE ©LSSA

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K. Rationality and reasonableness 55

BASIC TEMPLATE FOR CONSTITUTIONAL LAW LITIGATION 72

TAKING INSTRUCTIONS WITH A VIEW TO CONSTITUTIONAL LAW

CASE STUDIES FOR THE CONSCIENTIOUS CANDIDATE LEGAL

TABLE OF NATIONAL LEGISLATION ENACTED IN TERMS OF THE

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The training guide requires five basic outcomes.

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SELECT LIST OF CASES IN FULL AVAILABLE CITATION

A M v H M [2020] ZACC 9; 2020 (8) BCLR 903 (CC)

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Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC)

Buffalo City v Metgovis [2019] ZACC 9

Burchell v Burchell [2005] ZAECHC 35 (ECD 364/2005)

Cloete v S and A Similar Application 2019 (4) SA 268 (CC)

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

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of

Head of Department; Mpumalanga Department of Education v Hoërskool Ermelo 2010 (2) SA

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Kaknis v ABSA Bank Ltd 2017 (4) SA 17 (SCA) ([2017] 2 All SA 1)

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