CONSTI LAW A CASES

COMMON LAW

Mangope v Van de Walt 1994

- Bophuthatswana experienced a military coup by its armed forces to overthrow president Mangope.
- Despite attempts by president Mangope to dwell uprising via the use of external force he and those loyal to
him and Bophuthatswana were overthrown.
- This was so that they could be liberated as part of the homelands and join the new democratic South Africa.
- The Constitutionality of this was tried under the Common law principle of, “The Doctrine of Successful
Revolution”.
- That a revolutionary regime can acquire Legitimacy if the newly established order is recognised and desired
by the majority of the people under the old regime and that application of policies is efficient and conformed
to.
 SEPARATION OF POWERS:

President of RSA v Hugo 1997 [Independence of J]

- The South African President under the Interim Constitution had the power to pardon or reprieve defenders
under s 82(1), now s 84(2)(j).
- Thus acting in terms of his constitutional powers the president granted release of single mothers who had
children under the age of 12 years old.
- The respondent was a single father with a child under the age of 12 years argued this was discrimination on
the grounds of sex and gender as codified in s 8 of the Interim Constitution, now s 9(3).
- Despite executive nature of the case, presidential powers, particularly when concerning a whole group of
people could be justifiably subject to review.
- With regards to discrimination the court found that although the act discriminated against men, it did not
infringe on their right to dignity and equality and would have ultimately only served as vessel for an early
release.
- Thus the president’s actions were deemed constitutional.
- Case is of importance to SoP and more importantly that the Common Law principle of Prerogatives has been
used as a guide to the codification of presidential powers as pertained in s 84.

De Lange v Smuts 1998 [Importance of J independence]

- Mr De Lange argued against the constitutionality of the Insolvency Act, in that there existed a clause which
stated that if there is misconduct by the accused at a meeting of creditors, the presiding officer may commit
that person to prison.
- Mr De Lange argued this violates his Constitutional Right have his side of the argument heard in a fair trial
and be judged legitimately. (Audi et alteram partem)
- The substance of the act was not under dispute, but rather the procedure in which someone other than a
member of the judiciary had the right imprison someone.
- The majority view through the use of international law found this to infringe upon the principle of SoP, in that
non-judicial officers where given the power of judicial officers. That it was only constitutional if there was a
magistrate presiding over the proceedings.
- Jude O’Regan in her minority judgment disagreed in that she argued that a magistrate presiding over the
proceedings does so in an administrative function, a quasi-judicial function.
- Regardless if one agrees with the minority or majority, the point of the case shows the significance in having
the judiciary retain powers of retention due to their impartial nature of the application of law and that it allows
for checks and balances between the executive and the judiciary.
 SA Association of Personal Injury Lawyers v Heath 2000 [Independence of J—J own functions]

- The Special Investigations Unit performed executive functions similar to that of the police force, testimonies,
gathering evidence, etc.
- Thus the constitutionality of appointing a member of the judiciary, a Mr Justice Heath, was under dispute.
- The court found the appointment of the judge unconstitutional in relation to SoP, in that judges are prohibited
from being involved in matters concerning the legislation and executive.
- The purpose being is to establish the judiciary as a separate, objective entity so that it may effectively perform
its mandate of interpreting and applying the constitution.
- Furthermore that the purpose of the SIU is important and thus the head should be involved fulltime to achieve
its executive mandate of the exercise of justice as determined by the President.

Fedsure Life Assurance Ltd v Greater Johannesburg TMC 1998

- The case is an example of how the RoL can be seen to be applied differently throughout case law and that
legality is sometimes enough to justify actions.
- Thus when poorer areas in the East Rand of Greater Johannesburg had to pay increased rates, the court turned
to the legality of the Constitution.
- The court was divided on the issue of the reasonableness of the increase, but found that local governments are
empowered by s 151 of the constitution to perform executive functions void of national and provincial
interference.
- It’s for this reason that the procedural theory of the rule of law stood and that the actions of the municipality
were legal and thus their policies were deemed as being in line with the constitution.
 JUDICIAL PRECEDENT

S v Makwanyane
S v Williams (corporal punishment)
 CONSTITUTIONALISM:

S v Makwanyane
- The idea that the Constitution state presupposes a system whose operation can be rationally tested against in
terms of the law.
- Constitutionalism entails moving away from the arbitrary exercise of governmental power.
- From culture of authority to culture of justification.
 ROL:
Fedsure Life Insurance Ltd v Greater Johannesburg transport metropolitan council
- Joburg was divided into 4 a structure of North South East West, thus cross subsidization.
- Each division was to receive tax.
- Taxes that were received were not enough in the poorer areas.
- They claimed that the ROL was in contravention.
- The court said that the power to level taxes is a Constitution power.
- Original legislative power was derived.
- The government may only act in accordance to powers conferred through legal principles.
- Legality, procedural justice theory.
- Therefore ROL entails at least the idea of legality.

De Lange v Smuts 1998 (3) SA 785 (cc)

- Insolvency Act.
- De Lange had an insolvent state and the presiding officer from the Master office would not hand over the
necessary documents.
- De Lange would get sent to prison if the documents were not present and did not show up for court.
- As a result he was sent to prison and though that there was a break down in the SOP and JEL.
- The only person who could then free him was the president.
- The balance in the SOP is very important

Pharmacutecal Manufacturers Association of SA v President

- Legality and rationality as constraints on the exercise of executive power by the president
- No power exercised is beyond judicial review
- Decision must be rationally related to the purpose for which it was given
- Principle of legality and non-arbitrary app of power further developed
- Rationality standard doesn’t mean courts should substitute their opinions , only interfere if exercise of power
was inappropriate

Zondi v MEC for Traditional & Local Government Affairs

- ROL viewed accepts fundamental values of SA society

- Sustainable democracy…

Masethla v President

- Incorrec6 judgement of majority

- Minority: ROL requires the rules of natural justice (proc fairness) to be upheld
- Audi et alteram partem
- ROL requires fundamental fairness and right to be heard.
4 theories:

- Procedural Justice
 Fedsure Life Insurance Ltd v Greater Johannesburg transitional metropolitan council
 This model is not guaranteed to avoid injustice, as it avoids issues of substantive justice.
 Principles of natural justice include audi et alteram partem.
- Law enforcement
- Diceyan
- Substantive

President of RSA v Modderklip Boerdery 2005

- Modderklip Boerdery farm was occupied by squatters and thus applied for an eviction order from the court.
- The order was granted and Modderklip relied on the Council and police force to carry out the order of the
court.
- The state refused to do so despite numerous orders from the judiciary on the basis that the squatters were
private individuals that were not associated with the state and that Modderklip failed to apply for an eviction
order timeously.
- Court found failure of executive against s 165(4) of the constitution in which other organs of state are to assist
the judiciary.
- Furthermore the state has an obligation to do so in order to promote the RoL with regards to positive mandate
on its people through procedural justice.

Pharmaceutical Manufacturers v President of RSA 1999 (Diceyan)

- President under s 85 has the authority as the head of the national executive to bring legislation into operation.
- Thus the President accidently signed the Medicines and Medical Devices Regulatory Authority Act into
power before the final determination of schedules.
- Thus posed a threat to society as any drugs could be acquired void of a prescription.
- This was clearly constitutionally invalid, but there was uncertainty with regards to the ability of the CC to
review an executive decision.
- It was found that all exercises of power are not beyond the reach of judicial review with regards to the RoL.
- In that a decision must be rationally related for the purpose it set out to achieve.
- Thus irrationality led to the purpose of the bill not being enacted and thus the Act was only introduced when
all the necessary provisions had been achieved.
- Diceyan theory: The use of correct procedure to protect civil liberties.

New National Party v Government of RSA 1999 (Diceyan theory)

- NNP and DP argued that the requirement of the presentation of barcoded ID documents so as to vote, were
unconstitutional in that a percentage of the population wouldn’t be able to vote.
- That the presentation of old documentation should be sufficient in enabling someone to register to vote.
- The court argued that the RoL placed a mandate on parliament to provide a reasonable method to allow people
to vote, in relation to the Diceyan theory of RoL.
- The court found the procedure to be constitutional and reasonable in that the presentation of a barcode allowed
for quick, sufficient registration, that the barcodes were related to the holders’ fingerprints thus combating
fraud and finally old documentation was based on South Africa’s previous racial past.
- Ultimately parliament’s scheme was good for the electoral process and that there existed adequate time for
potential voters to acquire these bar coded documents.

Chief Lesapo v North West Agricultural Bank 1999 (Substantive Justice)

- Applicant applied for a bank loan to but a farm.

- A clause in the North West Agricultural Bank Act thus allowed for the repossession of the applicant’s farm if
he couldn’t repay the bank.
- He couldn’t repay the bank and thus they looked to repossess his property and sell it to recover its debt.
- This was to be performed without any recourse to a court of law and thus deemed a violation of s 34, right of
access to the courts.
- The bank acting in its own interest was thus viewed as an act of self-help and against the rule of law. In which
the correct procedure is to be upheld to protect specific human rights under the theory of Substantive Justice.

Affordable Medicines Trust v Minister of Health 2005 (P of Legality)

- The broad provisions in relation to the distribution of medicine under the Medicines and Related Substances
Act were brought to court under the belief that the Minister of Health had acted beyond his constitutional
powers.
- The court found that the broad definitions in relation to what drugs may be distributed were constitutional and
acceptable in the promotion of public well-being in relation to the rule of law.
- However it was found that the limitation of the distribution of medicine by medical practitioners was
redundant as the National Drugs Policy already put provisions in place to halt competition between
pharmacies and medical practitioners.
- Thus SoP cannot be too heavily altered by the judiciary, as constituiotnal provisions exist so as to allow
cabinet ministers to promote RoL.
 JUDICIAL REVIEW:

Marbury v Madison {US CASE}

- Executive officer was not for filing his duty.
- Court assumed that the role of the executive was to act as protectors of the US Constitution.
- Courts could not invalidate the actions.
- Therefore courts can assert their own authority to protect the Constitution.
- i.e. enforce the Constitution.
- Therefore the doctrine of Judicial review of legislation.
 COUNTER-MAJORITARIAN ARGUMENT:
S v Makwanyane
- The role of the court is not to second-guess the wisdom of policy choices that are made by legislators.
- Most South Africans were in favour of the capital punishment.
- Thus they did not regard the death penalty as cruel or inhumane.
Chaskalson J, held:
- “Public opinion may have some relevance to the enquiry it is no substitute for the duty to the vested in the
courts to interpret the Constitution”
- If public opinion were to deceive there would be no need for Constitutional adjudication.
- The very reason for establishing the new legal order was to protect the rights of minorities and others who
cannot protect their rights adequately through the democratic process.

West Virginia State Board of Education v Barnette

- The purpose of the Bill of Rights, was to place them beyond the reach of majorities and officials.
- Democracy does not always safeguard the rights of individuals.
- Certain basic human rights not to be subject to the outcome of elections.
- The values entrenched in Constitution as framework for interpretation, yet are consideration to freedom
precedent and compositions of rights are vital.
 FOUNDING PROVISONS:

PREAMBLE:

S v Mhlungu

- Case only really useful for a quote in relation to the Preamble of the Constitution.
- That the Preamble is not merely a throat clearing exercise, but underlies the rest of the text and thus aids in its
interpretation, therefore not used to confer rights.
- Some relation to RoL and the importance of the Preamble to the spirit and history of the constitution and its
importance in South African Law.

TAC v Minister of Health

- Useful in promoting substance of arguments related to questions about judicial review.

- That judicial review lies in the independence of the courts and the ability of the courts to apply the
constitution without fear, favour or prejudice.
- The above concepts can be related to concepts and constitutional sections related to the role of judges.
- Such as Security of tenure with regards to decisions not influencing the job security of judges as well as
benefits and income (s 176) helping to deter judges from other external financial gains that may warp their
perspective on cases.
- With removal (s 177) and other punishment being a threat to those that don’t hold up this mandate.

S1:

Coetzee v Government of the Republic of South Africa

- The values that must suffuse the whole process are derived from the concept of an open and democratic
society based on freedom and equality, several times referred to in the Constitution. The notion of an open and
democratic society is thus not merely aspirational or decorative, it is normative, furnishing the matrix of ideals
within which we work, the source from which we derive the principles and rules we apply, and the final
measure we use for testing the legitimacy of impugned norms and conduct.
- we are called upon to exercise what I would call a structured and disciplined value judgment, taking account
of all the competing considerations that arise in the circumstances of the present case, as to whether in the
open and democratic society based on freedom and equality contemplated by the Constitution, it is
legitimate/acceptable/appropriate to continue to send defaulting judgment debtors to jail

Carephone v Marcus NO

- Court recognises that Constitution establishes a democratic state

- All public institutions created by the Constitution is subject to its provisions
- Values of accountability, responsiveness and openness should be enforced in public power given by the
government

De Lange v Smuts

- Essential to consider our Constitutional history prior to new legal order in order to determine purpose and
method of interpretation in the present Constitution
- Highlights that South Africa is aiming towards a democratic state built on equality and fairness through
Constitutional Supremacy

Pharmaceutical Manufacturers Association of South Africa

- Courts need to look at Constitution and constitutional supremacy and rule of law to determine whether the
President acted within the powers given to him and that he had to show rationality

Rail Commuters Action Group v Transnet ltd

- The principle that government, and organs of state, are accountable for their conduct is an important principle
that bears on the construction of constitutional and statutory obligations, as well as on the question of the
development of delictual liability.
- The principle of accountability, therefore, may not always give rise to a legal duty whether in private or public
law. In determining whether a legal duty exists whether in private or public law, careful analysis of the
relevant constitutional provisions, any relevant statutory duties and the relevant context will be required. It
will be necessary too to take account of other constitutional norms, important and relevant ones being the
principle of effectiveness and the need to be responsive to people’s needs.

S2:

Fedsure life Assurance ltd v Greater Johannesburg Transitional Metropolitan Council

- Central to the Constitution that legislation and executive are constrained with in intra vines.

President of the Republic of South Africa v South African Rugby Football Union

- Highlights Constitutional Supremacy and that the President must act in line with the powers given to him
through the Constitution
 SHIFT IN J THINKING:

UDM v President of RSA

- Founding values set positive standards with which all law must comply in order to be valid.
- Section 1 may be amended with support of at least 75% of the National Assembly and 6/9 Provinces in the
National Council of Provinces.
- The issue of crossing the floor, to another party in order to make any sort of change is not allowed.
 NATIONAL EXECUTIVE:

TAC (Cabinet)

- Making of policy is prerogative of executive and not the courts.

- However when there is a breach of rights, the courts are under a duty to ensure effective relief is granted.
- Policy is and should be flexible.
- Only constraint is that policies must be consistent with the Constitution and law:
> Coordinating functions of state dept and administrators.
> Preparing and initiating legislation – Glenister 1.
> Performing other executive duties as provided.

Hugo (Exec power to Pardons offenders)

- Single father wanted to fall under the single mother clause.

- Constitution Court denied this.
- Nature of the power of the President is issuing a pardon.
- Traditionally power was called prerogative
- Power is rooted in the Constitution, and is constrained
- Decision – where President complied with Constitution, thus power is only constrained by the Constitution.

Liquor Bill

- Refer back to the NA

- Sent Bill back to the NA
- President is the gate keeper and guardian of the Constitution.
- After sent back, NA submitted to the President.
- President was still not satisfied,
- Referred it to the Constitution.

President of RSA v SARFU 1998 (Powers of Pres s84)

- President issued a commission of enquiry with regards to the functions within the rugby board of South
Africa.
- Acting as the head of state, he was entitled to do so without conformation from anyone else. S 84(2)(J).
- That there was no evidence to show that the president did not apply his mind correctly to this decision.
- Furthermore that the political nature of the inquiry is one in which administration is not being queried thus the
court is limited in intervention due to SoP.
 - The case is ultimately controversial as previous cases show the use of rational procedure to defend rights in
line with RoL.
- Whereas the above suggests an irrational decision in which an arbitrary exercise of power was used,
regardless if it’s in the public interest.

Masethla v President of RSA 2007 (Exec Cabinet)

- The President suspended and ultimately terminated Mr Masethla as the head of the National Intelligence
Agency (NIA).
- This was due to a breakdown of trust between Mr Masethla and the president.
- Mr Masethla argued this was an arbitrary exercise of power and ultimately unconstitutional.
- The court found that under s 209 the president has control of the intelligence services and thus justified.
- His actions amount to executive action and not administrative and can thus only be reviewable in terms of
legality and rationality.
- Thus although allowed the president still faced legal consequences in terms of the employment act, in which
Mr Masethla is to be returned to his previous position.
- However due to the breakdown of trust, re-instatement is not an appropriate remedy. Rather he should be
placed back in the financial position he was if he were to serve a full-term as head of the NIA.
- Minority view was the president acted unconstitutionally and that he should have consulted Mr Masethla in
terms of fairness incorporated as part of RoL.

Pharmaceutical Manufactures (exercise of Exec auth)

- Power constrained by the Constitution.
- ROL requires a rational connection between rationale for giving and purpose of power.
- The power the president has to exercise is by virtue of the fact that he is the President.
- He cannot delegate his power.
- Must exercise it solely.

Mazibuko v Sisulu

- National executive authority vests in the President which exercises his powers through Ministers
- Can have a vote of no confidence if there is a vote of two thirds majority

DA v President of South Africa

- Irrationality of appointing National Deputy Public Prosecutor as irrationality can infringe on the judicial
independence
- President needs to perform his conduct in a rational way as not to infringe on the constitutionality

ARMSA v President of RSA

- ARMSA disputed given raise in salaries for judicial officers

 - Executive holds the power of managing financial affairs

NATIONAL LEGISLATURE:

De Lille v Speaker of National Assembly 1998 (Checks and balances)

- Applicant was accused of abusing her freedom of speech in light of misconduct with regards to the Powers
and Privileges of Parliament Act.
- The Applicant argued that in her tribunal she was not allowed to argue her case and that she didn’t in fact
speak in an unparliamentary manner as expressed by the act. This is related to the Common law theory of
natural justice.
- The court held that both an infringement with regards to natural justice in the tribunals and section 5 of the act
with regards to the constraints placed on an individual’s right to freedom of speech were unconstitutional.
- An example of checks and balances by the judiciary on the legislature and that no Acts may exist void of
constitutional review.

Executive Council, Western Cape Legislature v President of the Republic of South Africa

- dispute between the Executive Council of the Western Cape and the national government relating to the
validity (constitutionality) of amendments to the Local Government Transition Act (Act gives President
power to amend the Act without the approval of Parliament)
- Legislature argued that national government cannot exercise its power that it enchroaches on provinces
(schedule 4 of Const)
- Court held that amendments were unconstitutional as they gave too much power to the power to make
legislation and that it exceeds his competencies
- Legislative authority vested in Parliament is to make laws for Republic in accordance with Const. Parliament
cannot deal with making all the laws and as such it can delegate subordinate regulatory authority to other
bodies and that it is necessary for effective law making. But there is difference in subordinate legislation
within a framework of a statute and assigning plenary legislative power to another body
- Parliament must act in accordance with Const and so must the legislature it provides and as such the
legislature is unconstitutional as it infringes on the separation of powers by giving too much legislative power
to the president

Doctors for Life International v Speaker of National Assembly 2006

- DFl argued that 4 Acts drafted by Parliament weren’t constitutionally sound due to the lack of public
involvement in their drafting.
- The Court found with regards to 2 of the acts the NCoP failed to perform its constitutional duty as set out in s
72(1)(a). In that there was public interest in the drafting of the bills, yet public hearings ultimately weren’t
held due to time constraints.
- Thus deemed unconstitutional and the bills invalid.
- With regards to the Dental Technicians Amendment Act there was no public interest and the nature of the bill
didn’t require it. Thus NCoP did not act unconstitutionally.
- The sterilisation Amendment Act had already been enacted in law and thus couldn’t be made invalid by the
court.
- Minority held that public involvement is however not a requirement for the constitutionality of every bill.
That doing so undermines the legislature and the right to vote.

Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (2014)

- EFF members were kicked out of court due to the speaker of the NA viewing their actions as a misconduct in
terms of how they are allowed to act in parliament and thus were charged in terms of pay and suspension
- Court held that it is not their responsibility to oversee how parliament regulates itself or if the conduct of the
EFF was correct but that the EFF has brought a justifiable case for the relief of some of their punishments in
regard to suspension
- Court granted the EFF’s relief

Democratic Alliance v Speaker of the National Assembly and Others (2015)

- DA disputed whether sections of the Act allowing Speaker of NA to use police to kick members out of court
was constitutional
- Court held that it was unconstitutional as it infringed on the members’ rights to free speech and as such it is
invalid and should be amended by Parliament

Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v
Speaker of the National Assembly and Others

- Abuse of power by President to the non-security upgrades to his home

- Court held that conduct held by President and NA was inconsistent to their roles set out in Constitution (abuse
of power by President and lack of holding President accountable by NA)
- Also regulates separation of powers because it deals with holding the President accountable and Parliament
oversees his conduct.

Democratic Alliance v President of the Republic of South Africa (2013)

- Legislature held President accountable for irrationality in assigning Menzi Simelane as NDPP as this position
is related to judiciary
- Judiciary is independent and the Legislature should ensure that the Executive acts in such a manner so as not
to infringe on it

Mazibuko v Sisulu
- Dispute over vote of no confidence in the president
- Court held that the Constitution gave power to governmental institutions (NA) and not a right to have a vote
of no confidence
- Motion of no confidence is essential mechanism used by Parliament to hold executive accountable

Matatiele 1:

- The provincial boundaries, cross boundaries allowed, yet the lines of the provinces were very vague
- A political decision was to be put forward, to abolish cross boundaries.
- Thus they would make strict provincial boundary lines and they would be adhered to.
- The people of Matatiele did not want to be part of the EC and wanted to be part of KZN.
- They facilitated public debate in the matter at hand.
- 6/9 provinces had to support this matter as is required for Constitutional amendment.
- Yet in KZN, there was no real public involvement.
 JUDICIARY:

South African Association of Personal Injury Lawyers v Heath and Others

- Concerned constitutionality of provisions governing functioning of the Special Investigating Unit (set up to
investigate malpractice/maladministration
- Questioned the validity of appointment of a judge to head of unit and validity of President’s referral to the
SIU for investigation
- Court held that appointment of a judge to head the SIU violates SoP as it infringes on the judicial
independence as it brings politics into the judicial system
- Court held that President cannot refer to SIU for investigation as it does not fall within the scope of his
functions

Minister of Health v Treatment Action Campaign

- Making of policy is prerogative of executive and not the courts.

- However when there is a breach of rights, the courts are under a duty to ensure effective relief is granted.
- Policy is and should be flexible.
- Only constraint is that policies must be consistent with the Constitution and law:
> Coordinating functions of state dept and administrators.
> Preparing and initiating legislation – Glenister 1.
> Performing other executive duties as provided.

Van Rooyen v The State

- Importance of judicial independence and constitutional legitimacy of magistracy in light of statutory

provisions applicable to magistrates
- Argument that magistrates can be controlled by Minister of Justice as thus limits judicial independence and
infringement of SoP as Executive can influence the courts
- Court held that courts are independent and free to do their judicial duty

Bernert v Absa Bank

- Supreme court of Appeal delivered judgement in favour of Absa Bank

- Deals with judicial independence as the argument was that judges in SCA had biased as one judge had shares
in Absa, two judges had prior association with Absa as their previous employer was funded by Absa, factual
findings were unreasonable due to bias
- Constitutional Court held that judgement would have no effect on the shareholding of the one judge and that
previous associations will not play role in reasonableness and thus the two judges acted in the right capacity.
The courts acted independently
Justice Alliance of South Africa v President case

- Dealt with the extension of term of the Chief Justice

- Court held that term should be non-renewable due to Rule of Law and separation of powers and thus only
Parliament has power to extend a Const Court judge’s term and not the President
- Court held that sections dealing with extension of term of office of judges unconstitutional so to protect the
judicial independence

National Society for the Prevention of Cruelty to Animals v Minister of Agriculture

- Unconstitutionality of Magistrates to assign licenses for training, exhibition or use of animals

- High court held that sections allowing this is unconstitutional as it is an administrative job and not judiciary
function and thus infringes on Separation of Powers

ARMSA v President of the RSA

- Dealt with Judicial officers’ salary

- Highlights judicial independence so as to allow for justice and fairness

EFF v Speaker 2014

- Deals with the courts not interfering with the conduct within parliament and that they are able to regulate
themselves and through this not infringe on SoP so that Parliament can form constitutional compliant laws
 CO-OPERATIVE GOVERNANCE:

In Re Certification of the Constitution

- Levels of government to be distinctive, interdependent and interrelated and that all organs in each sphere
should adhere to principles of cooperative government
- Levels of gov has a duty to keep interrelated peace, national unity and indivisibility
- Duty to secure well-being of citizens
- Duty to cooperate in mutual trust and good faith through friendly relations and avoid legal proceedings against
each other

Premier of the Province of the Western Cape v President of the Republic of South Africa

- Constitutionality of provisions in the Public Service Act allowing for executive to encroach on provincial
functions whereas Executive held that it vested the power to structure the public service with Parliament and
not with provinces
- Court found that it structures the public service and did not infringe the executive authority of provincial
Premiers
- Found however that power of national minister was unconstitutional as it infringed on the functions of
Premier

Liquor Bill case

- Legislative authority of a province is vested in provinces legislature and this includes power to pass legislature
regarding Schedule 4 and 5 of Constitution.
- National legislation also holds power to pass legislation in Schedule 4 and thus requires cooperation between
national and provincial to form laws that can be held by both levels of legislature

Independent Electoral Commission v Langeberg Municipality

- Highlights that a dispute between levels should be tried to be settled before approaching the court

National Gambling Board v Premier of KwaZulu Natal

- Highlights that due to constitution it is a necessary requirement for organs of state to make an effort in settling
a dispute before it approaches the courts
- Courts dismissed direct access to court as the parties made no effort to resolve their dispute

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal

- Dispute between provincial organ and local municipality between whether provincial or municipal powers
allowed for rezoning of land and establishment of townships
- Court held that municipalities should be allowed to function without provincial interference and that it was a
municipal power

Minister of Police v Premier of the Western Cape

- Insufficiencies of Municipal Police Services in Khayelitsha and so a commission of inquiry was appointed by
Premier to oversee conduct within Police Services
- Police Services argued that the Premier acted unconstitutional
- Court held that Premier acted within her powers and thus her actions were not unconstitutional
 PROVINCIAL GOVERNMENT

Premier of Western Cape v President of the Republic of South Africa

- Highlights the constitutional constraints of national minister and the role the national executive has in creating
structures for public service

Matatiele Municipality v President of the Republic of South Africa

- Dispute between municipal and national governments in re-demarcation and which sphere held the power
- Court held that it was provincial power however should involve public in making its decision however held
that the Amendment was unconstitutional
- Court held importance of public participation and co-operative governance so to allow for communication
between national and provincial legislatures (NCOP facilitates communication)
- Highlights that laws created by national and provincial must stand in line with Const

Premier: Limpopo Province v Speaker: Limpopo Provincial Legislature

- Dispute about constitutionality of legislature passed by provincial legislature in terms of whether it fell in the
functions of provincial legislature as it dealt with financial management
- Court found the Bill unconstitutional as it did not such budgetary provisions was to be made by the national
rather than the provincial sphere

Minister of Police v Premier of the Western Cape

- Highlights the power of Provincial to deal with its own affairs

 LOCAL GOVERNMENT

Mogalakwena Local Municipality v Provincial Executive Council, Limpopo

- Intervention by Provincial on Municipality as the Municipality had disunity within its council
- Court held that Provincial had no authority to intervene as the Municipality has the right to practice its own
affairs and that the Provincial executive merely interfered for political dispute

Minister of Local Government, Environmental affairs v The Habitat Council and Others

- Dealt with power given to provincial government to hear appeals against municipal planning decisions and to
replace decisions with their own
- Court held that this was unconstitutional as the power of planning decisions lies within the municipality
- Court held that there is overlap between provincial and local and that provincial may oversee constitutionality
of local conduct but cannot hear appeals against municipal planning decisions