Commentary: City of Tshwane Metropolitan Municipality v Afriforum & Another 2016 (6) SA 279 (CC)

The road to decolonizing constitutional law has taken place one street at a time. In 2007 the Tshwane
Metropolitan Municipal Council lawfully took a policy decision to replace the names of streets and
heritage sites in the city of Pretoria and surrounding areas. Implicitly relying on the philosophy that
informs the Constitution’s aspirations of achieving national unity, reconciliation and healing the divisions
of the past,37 the Council resolved to change 25 of the more than 100 old street names.38 The purpose
was to recognize and honour the heritage and history of indigenous heroes and heroines in their own
motherland.39 Subsequently, the name Tshwane replaced Pretoria for the same reasons. It is conceivable
that this resolution was also in furtherance of some of the provisions of sections 152 and 153 of the
Constitution.Pertinent to the Council’s (albeit unstated) intentions are the sentiments expressed by Welsh
just as apartheid was drawing to an end: ‘without addressing diversity in a way that will ensure that all
live together ‘in reasonable harmony and peace’, South Africa will ‘haemorrhage by continuing
violence’.40 Upon being informed of Council’s resolution, Afriforum took the highly insensitive, divisive
and somewhat selfish41 stance that the Council should be interdicted from proceeding to implement the
resolution. In terms of an out of court agreement, the Council committed to delaying the replacement of
street names by six months, during which time Afriforum would be given an opportunity to seek judicial
review of the Council resolution. Ironically, Afriforum never did launch its review application.42 Seven
months later, preceded by some consultative meetings held in areas located in 10 of the 76 wards of
greater Pretoria, as well as after having, in its view, solicited a diversity of views including those of
Afriforum, Council commenced with the implementation of replacing the old and offensive street
names.43On an urgent basis, Afriforum applied for – and succeeded in obtaining from the High Court an
interdict against the Council,44 threatening to cause strife and a deepening of the divisions of the past.45
The Council sought leave to appeal, which the Supreme Court of Appeal granted. However, the Supreme
Court of Appeal dismissed the appeal, compelling the Council’s application to the Constitutional
Court.46In declaring that the interdict should never have been granted in the first place,47 the
Constitutional Court placed the case within its proper context. The wounds of colonialism, racism and
apartheid run deep in South Africa.48 Black people have been subject to centuries of deprivation of ‘a
sense of place and a sense of belonging’49 on account of colonialism. Even worse, colonialism was the
‘systematic negation of the other person and a furious determination to deny the other person all
attributes of humanity’.50 In the words of Ndlovu-Gatsheni, ‘denying others humanity is the highest form
of barbarism’.51 So too, the historical injustices occasioned by apartheid were profoundly pernicious.52
The Court recognized that the Council was inspired to give realistic expression to the notion of Ubuntu,
‘that one only becomes complete when others are appreciated, accommodated and respected’.53 In a
rather irritated tone, the majority of the Court rejected Afriforum’s argument that ‘harm and toxicity’
would arise when Afrikaners looked ‘only at the names linked to other racial groups’. The Court construed
this to mean that Afriforum could not accept black people as fellow human beings deserving of human
dignity and equality and denied them any honour ‘for their pursuit of justice and freedom in South
Africa’.54Highlighting the deference that the separation of powers doctrine requires of it,55 the Court
unequivocally stated that the Council is vested with the Constitutional and statutory power and duty to
run the affairs of the City by taking policy decisions. The Court further held that since the nature of public
participation is flexible, but does not permit ‘co-governance or equal sharing of executive and budgetary
responsibilities’ by a civil society organization such as Afriforum, the Council had satisfied the requirement
of ensuring that public participation took place.56 As such, the decision is important for the fact that
Ubuntu constituted the fundamental basis of the decision and has advanced the decolonization of
constitutional law by developing South Africa’s unique form of separation of powers57 by giving a
nuanced meaning to public participation. The Court declared that it is entirely within the executive branch
of government’s remit to determine how it shall fulfil its functions. In particular, courts must refrain from
making orders that ‘have the effectof altogether derailing policy-laden and polycentric decisions of the
other arms of the State’.58

Commentary: Economic Freedom Fighters v Speaker of the National Assembly 2016 (5) BCLR 618

(CC); 2016 (3) SA 580 (CC) (31 March 2016)

As a non-judicial institution, the Public Protector has Constitutional powers to investigate

maladministration and make appropriate recommendations based on her findings. Although it states on
page 265 of South African Constitutional Law in Context that the Public Protector “does not usually make
binding findings that can be enforced”, the case above has changed that position. Indeed, at para 52,
Mogoeng CJ paints a picture in which the Public Protector’s findings, in the form of remedial action, are
upheld and respected by the “Goliath” brought down (taken to task) by the “David” – the man in the street
– confronted with unfair or inefficient administration or even corruption. As such, this case “put the
argument [as to the status of the findings of the Public Protector] to rest, once and for all”, affirming that
the findings are binding.The case arose out of the fact that members of the public including a Member of
Parliament lodged complaints with the [former] Public Protector, Thuli Madonsela, concerning the
security upgrades that were being effected at President Zuma’s private Nkandla residence. The Public
Protector investigated the matter and concluded that several improvements were non-security features,
and that any installation that has nothing to do with the President’s security amounts to undue benefit or
unlawful enrichment to him and his family. In this regard, the Public Protector declared that the President
had acted in breach of his constitutional obligations in terms of the Constitution and she took remedial
action requiring the President to pay back a reasonable percentage of the cost of the non-security
measures (see para 10). The Public Protector submitted her report to the President and National Assembly
requiring action. The National Assembly set up an Ad Hoc committee to examine the Public Protector’s
report and further nominated the Minister of Police to do further investigations based on the findings of
the Public Protector. After considering the Ad Hoc committee’s report and the report of the Minister of
Police, which exonerated the President, Parliament resolved to absolve the President of all liability.
Consequently, the President did not comply with the remedial action taken by the Public Protector.
Dissatisfied with the decision of the National Assembly, the EFF joined by the DA requested an order
affirming the legally binding effect of the Public Protector’s remedial action;directing the President to
comply with the Public Protector’s remedial action and declaring that both the President and the National
Assembly acted in breach of their constitutional obligations.Of significance is the expression found in para
31 of the case that “The President is a constitutional being. In the Constitution the President exists, moves
and has his being.” On the strength of this, the Court found that in disregarding the remedial action taken
by the Public Protector against him, the President failed to uphold and defend the Constitution as the
supreme law of the land (see para 83). It was found that conduct of the National Assembly of passing a
resolution purportedly nullifying the findings and remedial action taken by the Public Protector and
replacing them with their own findings offended the rule of law and, it was another way of
taking the law into their own hands (see para 95). The persons against whom findings are made cannot
ignore the findings. They must be implemented to remedy any breach of the Constitution

Commentary: Economic Freedom Fighters & Others v Speaker of the National Assembly & Others

2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December 2017)

In pursuit of ensuring accountability over the executive, Parliament has the power to take remedial action
and even to dismiss members of the executive. This means that institutional arrangements must exist to
ensure democratic control over the executive since they have not been democratically elected by the
people. Specifically, the NA has special powers to ensure democratic control over the executive. However,
over the past few years it has become evident that the NA’s powers were not sufficiently precise to be
effective. It is the context of the NA’s failure to hold former President Zuma accountable for the unjustified
enrichment he derived from the non-security upgrades at Nkandla that lead to this, the 2nd case by the
name of EFF v Speaker of the National Assembly. As an overarching constitutional provision, section 237
declares that all constitutional obligations must be performed diligently and without delay. The import of
this provision is pronounced when juxtaposed against the provisions of section 89 of the Constitution that
demands that the NA resolve to impeach a President if he is found to have seriously violated the law or
the Constitution or is no longer able to fulfil his constitutionally-mandated functions. Notwithstanding the
strength of this provision, in the absence of an antecedent decision by the NA of what exactly constitutes
a serious violation of the law or the Constitution, the NA would not be likely to succeed in holding the
executive to account. As such, it is this matter which tasked the NA with formulating a definition of
“serious violation of the law or the Constitution”.In an interesting twist, in his dissenting judgment,
Mogoeng CJ termed the majority judgment (penned by Jafta J) as “a textbook case of judicial overreach –
a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament. The
extraordinary nature and gravity of this assertion demands that substance be provided to undergird it,
particularly because the matter is polycentric in nature and somewhat controversial.” The majority
vehemently denied that the decision constituted judicial overreach because the foundation for the NA to
hold the executive to account was already stipulated in the Constitution itself, but was merely
extrapolated upon by the Court. Indeed, the majority relied on the powers vested in the Court in terms of
section 172 to make “just and equitable” remedies. Accordingly, this case confirms that in terms of the
separation of powers doctrine, it is the legislature that holds the executive to account and it is the
judiciary’s task to keep both the legislature and judiciary in check, albeit by not intruding too egregiously
into the domain of either.Simply put, the EFF 2 case established that despite the numerous impeachment
processes instituted against former President Zuma, the NA had never fulfilled its obligation of first making
an explicit determination as to whether a serious violation of the law or the Constitution had taken place,
thus the NA had not invoked suitable and effective mechanisms to guarantee an accountable executive.
Amandla awethu, mannda ndiashu, maatla ke a rona or matimba ya hina (power belongs to us) and
mayibuye iAfrika (restore Africa and its wealth) as stated in para 7 is the crux of this case. The power that
vests in the Speaker to determine the voting procedure in a motion of no confidence, belongs to the
people and must thus not be exercised arbitrarily. As such, a motion of no confidence in the President,
must have the effect of ensuring that the voting process is not a fear or money-inspired sham but a
genuine motion for the effective enforcement of accountability. This is so because we put our faith in
Parliament because Parliament is elected to represent the people and to ensure government by the
people under the Constitution. When there is a breach of any constitutional obligation by a member of
the executive, accountability enhancing instruments must be invoked, including a vote by the Members
of Parliament in a motion of no confidence brought against the President.The crisp question in this case
is whether the Constitution read with the Rules of the National Assembly give the Speaker the power to
prescribe voting by secret ballot in a motion of no confidence in the President? The Applicant’s argument
is that if the vote is not conducted by secret ballot, it will be tainted by the perceived fear by some
Members of Parliament of adverse and career limiting consequences, instead of being the free will of
Members, thus it is in the public interest for it to be secret. Indeed, a secret ballot would be consistent
with the need for openness, accountability and responsiveness to the needs of the people.Ultimately in
terms of section 57 of the Constitution, the Court held that the Speaker has the right to determine
whether or not the vote will be by way of a secret ballot or not. This position is supported by the
separation of powers doctrine, because it would be irregular for the judiciary to intrude into the domain
of the powers conferred on Parliament because it is Parliament’s right and duty to decide on the voting
procedure, through the Speaker as the designated official. The Rules of the National Assembly reinforce
the view that the Speaker is empowered to decide how a vote will be conducted. There must always be a
proper and rational basis for whatever choice the Speaker makes. She should thus be aware that a secret
ballot protects freedom of expression of choice of a preferred candidate without undue influence,
intimidation and fear of disapproval by others. Moreover, it must be remembered that central to the
freedom “to follow the dictates of personal conscience” is the oath of office. This is so because Members
are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws.
Nowhere does the supreme law provide for them to swear allegiance to their political parties. Thus, the
choice remains that of the Speaker alone to decide whether the vote in a motion of no confidence in the
President will be by secret ballot or not.

Commentary: Democratic Alliance v Minister of International Relations and Cooperation & Others

[2017] ZAGPPHC (22 February 2017)

On 19 October 2016, South Africa deposited a notice of withdrawal from the Rome Statute with the
Secretary-General of the United Nations. This is notwithstanding the fact that South Africa had signed the
Rome Statute on 17 July 1998 and ratified it on 27 September 2000.256 Shortly thereafter, in July 2002,
national legislation, appropriately named the ‘Implementation of the Rome Statute of the International
Criminal Court Act 27 of 2002’, (Implementation Act), was promulgated, eradicating any ambiguity about
South Africa’s intention to comply with the RomeStatute (and therefore, the rule of law and the principle
of legality). It is pertinent at this point tmake reference to the expression by Wendy Brown
that:Sovereignty is a sign of the rule of law and, at the same time, supervenes the law. Sovereignty is both
the source of law and above the law. It is all law and no law. Its every utterance is law, and it is lawless.
Unsurprisingly, the Democratic Alliance and other interested parties immediately challenged the
propriety of the government’s conduct. In finding the government’s conduct to indeed be invalid and
unconstitutional, the Court did precisely what it was supposed to do. The judiciary is not supposed to
subvert the powers and functions of either the executive or the legislature: all that it is required to do is
to declare any conduct or any law invalid on account of its inconsistency with the Constitution, unless the
circumstances justify intervention.The Court held that procedurally, the decision by the national executive
to deliver the notice of withdrawal of South Africa from the Rome Statute of the ICC without prior
parliamentary approval is unconstitutional and invalid. The decision is also unconstitutional since it was
not preceded by the repeal of the Implementation Act. The Court declined the invitation to pronounce on
the substantive merits of South Africa’s withdrawal from the Rome Statute of the ICC because that
decision is policy-laden, and one residing in the heartland of the national executive in the exercise of
foreign policy, international relations and treaty-making, subject to the Constitution.256 L Stone
‘Implementation of the Rome Statute in South Africa’ in Murungu C and Biegon J (eds)
ProsecutingInternational Crimes in Africa (2011) 306. Accordingly, the message being conveyed here is
that the government should be held to account (both internationally and domestically) if there is
incongruence between the international and domestic commitments that have been voluntarily entered
into by way of ratification and implementation of treaties, specifically if it is conduct of a recalcitrant
government seemingly giving preference to political considerations over law.257

Commentary: Democratic Alliance v President of the Republic of SA; In re: Democratic Alliance v

President of the Republic of SA & Others 2017 (4) SA 253 (GP) (9 May 2017)

Even though the Constitution grants the exclusive right to the President to appoint and dismiss members
of his Cabinet in a reshuffle, the rule of law dictates that even the President must comply with the
Constitution and that the government and all those in power must have authority provided by law for
everything they do. Since South Africa’s rule of law is to be understood in its broadest sense, it means that
procedurally, the President may not do whatever he wants, but must at all times ensure that he remains
“accountable, responsive and open” (as per s 1(d) of the Constitution). Moreover, s 83(2) of the
Constitution specifically states that the President must “uphold, defend and respect the Constitution”. To
be sure, the powers vested in the President enable him to act in order to fulfil his constitutional
responsibilities, which are intertwined with the duties to refrain from acting in a way that may undermine
the state itself and the rule of law. The Cabinet reshuffle of 31 March 2017 has seemingly undermined the
state because the country’s economy has been downgraded to “junk status” which has serious
implications for the proper and effective running of the country. The case of Certification of the
Constitution of the Republic of South Africa at para 116 is authority for the view that the President’s
conduct is reviewable if it in any way constitutes a violation of the Constitutional 260 See para 2.2 of the
Order quoted in [1] above.provisions. Thus, although Cabinet members are political appointees who know
that they can be hired and fired at the will of the President (see the case of Masethla v President of the
Republic of South Africa at para 228), inherent in the rule of law is the principle of legality. The essence of
the principle of legality is rationality. Therefore, there must be a rational connection between the decision
made by the President and the information relied upon which prompted the President to make that
decision (see para 19 of the case). In other words, the decision must not be arbitrary. Given that the
President allegedly relied on an Intelligence Report (para 35 of the case), which has never been proven to
contain reliable information, to reshuffle his Cabinet, it is not appropriate for the President to have made
such a far-reaching decision because it is not a rational decision. As stated on page 199 of the textbook,
“the exercise of powers by members of the Cabinet [including the President] are clearly constrained by
the principle of legality and, as is implicit in the Constitution, the Cabinet members must act in good faith
and must not misconstrue their powers”. The President arguably misconstrued his powers when he
removed the Minister and Deputy Minister of Finance based on the Intelligence Report.Importantly, the
President is obliged to exercise some of his functions “together with the other members of the Cabinet”
in terms of section 85(2) of the Constitution, especially since he should be sensitive to the general public
who voted for the political party that won the elections and who voted him into power. There does not
appear to have been any constructive discussion with the members of Cabinet concerning the Cabinet
reshuffle. Instead, the President seemingly
made a unilateral decision and was publicly criticised for it by some members of Cabinet.In addition, the
exercise of the President’s powers may not infringe any provision of the Bill of Rights. Since the
downgrading of the economy to “junk status” has negatively affected the property rights of persons who
have invested money, those persons’ property rights have been infringed. As such, it can be argued that
the President’s decision has infringed the rule of law and should be reviewed with a possible consequence
that the President’s decision be set aside as invalid and unconstitutional. However, at this point it is
necessary to note that in light of the separation of powers doctrine, the judiciary has not overstepped the
boundaries of its powers by declaring that the President has acted unconstitutionally; all it has done is
made an order that the record and the reasons must be made available so that the related decision as to
the constitutionality of the President’s conduct is able to be made

Commentary: Corruption Watch NPC & Others v President of the Republic of South Africa; Nxasana v

Corruption Watch NPC 2018 (10) BCLR 1179 (CC) (13 August 2018)

To uphold the rule of law – one of the most important founding values of the Constitution – what the
South African state must guarantee is a prosecuting authority that is not “malleable, corrupt or
dysfunctional”. More specifically, the prosecuting authority must exercise its powers independently. That
is, without any fear, favour or prejudice (as per section 179(4) of the Constitution) and subject only to the
Constitution and the law (in terms of section 32(1)(a) of the National Prosecuting Authority Act). In order
for these objectives to be achieved, the minimum requirement of a National Director of Public
Prosecutions is that they must be “fit and proper”. What this means is that the person must exhibit
conscientiousness and integrity. If this is the case, the NPA’s independence will then be secured. As the
Constitutional Court has previously stated at para 146 of the Certification judgment: “[t]here is ... a
constitutional guarantee of independence, and any legislation or executive action inconsistent therewith
would be subject to constitutional control by the courts”. Recently, Yacoob ADCJ declared in the 2012 DA
v President of the Republic of South Africa case that the office of the NDPP “is located at the core of
delivering criminal justice”, meaning that a well-functioning criminal justice system is central to any
functioning constitutional democracy. As such, if you subvert the criminal justice system, you subvert the
rule of law and constitutional democracy itself. Unsurprisingly, the NPA Act proscribes improper
interference with the performance of prosecutorial duties. Section 32(1)(b) of the NPA Act provides:
“Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of
state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority
or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and
functions.”A prosecuting authority that is corrupt, malleable and dysfunctional would be susceptible to
political interference and nefarious political agendas, with criminals (especially those holding positions of
influence) never answering for their criminal deeds. Such a situation is contemptuous of the rule of law,
but it characterises the South African prosecuting authority for the last decade at least. Moreover, this
dysfunction has rendered the National Prosecuting Authority paralysed by instability. In relatively quick
succession, National Directors of Public Prosecutions have been appointed. None of them completed the
stipulated 10-year tenure. Vusi Pikoli was succeeded by Menzi Simelane, who was succeeded by Mxolisi
Nxasana, who was replaced by Shaun Abrahams. The matter of Justice Alliance v President of the Republic
of South Africa (2011) established that security of tenure is an integral part of ensuring independence.
Although that matter concerned the independence of the judiciary, the principle is analogous to the
prosecuting authority.The Corruption Watch/Nxasana matter relates to former President Jacob Zuma’s
removal of Mr Nxasana from office. Interestingly, this coincided with the acrimony that had developed
between Nxasana and Advocate Jiba, the former Acting NDPP, and Advocate Mrwebi, the former Special
Director: Specialised Commercial Crime Unit.By way of a process calculated to remove Nxasana from
office, Zuma threatened to institute an inquiry to establish whether Nxasana was “fit and proper” to hold
office. The threat was based on Nxasana’s previous criminal conviction for “violent conduct”; allegedly
unbecoming and divisive comments which had the effect of bringing the NPA into disrepute made by Mr
Nxasana and reported in the media; and alleged non-disclosure of facts and circumstances of prosecutions
which Mr Nxasana had faced previously. Indeed, section 12(6)(a)(iv) of the NPA Act does permit the
President to remove an NDPP from office if the NDPP is no longer a fit and proper person to hold office.
In para 25 of the judgment, Madlanga states it thus: “Zuma was bent on getting rid of Mr Nxasana by
whatever means he could muster. His was an approach that kept on mutating: it was first a stick; then a
carrot; a stick once more; and eventually a carrot”. In para 10 of the judgment, it is recorded that this
approach played out as follows: the commission of inquiry was set to commence on 11 May 2015. Parallel
with this inquiry process, however, Zuma’s legal adviser, Mr Hulley made a promise that Mr Nxasana
would be paid a settlement amount from public coffers. Over time that amount increased progressively.
An earlier offer contained in a draft settlement agreement was R10 million. Mr Nxasana did not accept it.
Former President Zuma was undeterred. Thereafter Mr Hulley sent Mr Nxasana another draft settlement
agreement with the amount left blank for Mr Nxasana to fill it in himself. Ultimately, the commission
hearing never commenced as settlement was eventually reached. MrNxasana signed the settlement
agreement on 9 May 2015. In terms of the agreement Mr Nxasana would relinquish his position as NDPP
and receive a sum of R17.3 million as a settlement payment. As Madlanga eloquently states at para 28,
“The inference is inescapable that [Zuma] was effectively buying Mr Nxasana out of office. … conduct of
that nature compromises the independence of the office of NDPP.” Mr Nxasana was paid an amount of
R10 240 767.47. The rest was retained by the state for income tax. Evident from this scenario is that
Nxasana did not vacate office voluntarily (as regulated by section 12(8) of the NPA Act).The Constitutional
Court was thus obliged to decide whether the settlement agreement and, therefore, Mr Nxasana’s
vacation of the office of NDPP were constitutionally valid; whether Mr Nxasana should be required to
repay the R17.3 million settlement payout; and whether the appointment of Advocate Abrahams as NDPP
was constitutionally invalid. In addition, the Court had to determine whether section 12(4) and (6) of the
NPA Act were constitutionally invalid.The majority of the Court concluded that the settlement agreement;
Nxasana’s vacation of office and the payment of R17.3 million were all constitutionally invalid and violated
the required independence of the office of the NDPP. Consequently, Abrahams’s appointment was also
constitutionally invalid. Nxasana’s removal was invalid for the fact that in terms of section 12(6)(b) of the
NPA Act, it is Parliament (as part of its role of ensuring accountability on the part of the executive and
representing the people) that must resolve to remove an NDPP.Para 88 of the judgment is especially
pertinent: Former President Zuma appointed Advocate Abrahams following his unlawful removal of Mr
Nxasana. That removal was an abuse of power. Advocate Abrahams benefitted from this abuse of power.
It matters not that he may have been unaware of the abuse of power; the rule of law dictates that the
office of NDPP be cleansed of all the ills that have plagued it for the past few years. It would therefore not
be just and equitable to retain him as this would not vindicate the rule of law. Accordingly, the President
Ramaphosa) was afforded 90 days to appoint a new NDPP, which he did when appointing Shamilla Batohi.
Simultaneously, Parliament was afforded 18 months within which to address the shortcomings
highlighted in section 12 of the NPA Act