Breach of Constitutional or Legislative Duties


Minister of Basic Education and Others v Basic Education for All and Others

  • This case dealt with the failure of the Department of Basic Education to provide textbooks to certain learners, with the issue before the court being whether such was a breach of the Department’s constitutional duty to do so in terms of the right to education as contained in section 29(1)(a) of the Constitution.
  • The Supreme Court of Appeal held that the Department of Basic Education had adopted a policy stipulating that each learner be provided with textbooks prior to the academic year commencing and in doing so had given substance to the right to education.
  • The court went on to note that such was immediately realisable and that therefore the failure to provide textbooks to certain learners infringed their constitutional rights and amounted to unfair discrimination against the learners who hadn’t received the textbooks. The appeal was therefore dismissed.

Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others

  • The Supreme Court of Appeal held that by allowing the Sudanese President, Omar al-Bashir, to leave the country despite an international arrest warrant and a High Court order instructing the State to effect his arrest, such was inconsistent with the obligations imposed under the Rome Statute coupled with section 10 of the Implementation of the Rome Statute of the International Criminal Court Act and therefore unconstitutional.
  • The court noted, as per Wallis JA, that when South Africa enacted the Implementation of the Rome Statute of the International Criminal Court Act, it did so on the basis that immunities, even those relating to heads of state,  would not serve as a bar to the prosecution of international crimes in South Africa nor would it constitute a bar to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes.
  • Wallis JA further held that there was no customary international law practice to suggest that there is an international crimes exception to the immunity and inviolability that Heads of State enjoy when visiting a foreign country.

Democratic Alliance v Speaker, National Assembly and Others(CC)

  • Section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 allows the Speaker of the National Assembly to call upon security services to arrest and remove persons from Parliament who are creating a disturbance.
  • The Democratic Alliance sought to declare this provision unconstitutional as it infringed ones freedom of speech within Parliament. The High Court held that section 11 of the Act was unconstitutional and was referred to the Constitutional Court for confirmation.
  • On confirmation, the Constitutional Court held that without freedom of speech in Parliament, the very concept of Parliament would be a ‘sham’ and for this very reason members have been afforded civil and criminal immunity  in order to effectively conduct the business of Parliament but that such immunities can not go so far as to allow members to disrupt proceedings in parliament so that it is unable to perform its business.  Therefore the Constitutional Court held that such did limit members freedom of speech within Parliament and that such a limitation by means of an Act of Parliament was constitutionally impermissible as it could only be subject to the rules and orders of Parliament.
  • The Constitutional Court held that the omission of the words “other than a member” after the word “person” to be inconsistent with the Constitution but therefore rectified such by reading these words into the section.

My Vote Counts NPC v Speaker of the National Assembly and Others (CC)

  • The Constitutional Court was required to consider whether Parliament had failed to fulfil its constitutional duty of enacting legislation giving effect to the right to access of  information, as contained in section 32 of the Constitution, by requiring political parties to disclose their sources of private funding.
  • The Constitutional Court held that the Promotion of Access to Information Act (PAIA) is the piece of legislation to give effect to the rights contained in section 32 of the Constitution and that the Applicant failed to comply with the principle of subsidiarity as it attacked the matter not on the ground of PAIA but rather on the constitutional right in section 32 and was therefore dismissed.

Naidoo v Minister of Police and Others

  • The Supreme Court of Appeal had to determine whether the Minister of Police was vicariously liable for the conduct of members of the South African Police Services for failing to render assistance to those victims of domestic violence by receiving and investigating the complaint.
  • The Court held that members of the South African Police Services were under a duty to do so and that by continuously attempting to persuade the appellant to avoid the laying of charges against her abuser even to the extent of informing her that her husband would lay counter-charges and both would be arrested was a failure to perform such a duty and therefore the appellants claim in this regard succeeded.

Tlouamma and Others v Speaker of the National Assembly and Others

  • The High Court, Western Cape Division, had to determine whether the Speaker of the National Assembly was in breach of their duty for not scheduling a motion of no confidence in time. Furthermore the applicants sought the removal of the Speaker on the basis that she was no longer fit and proper to hold the position. Lastly the applicants sought declaratory relief on voting in terms of a secret ballot.
  • In relation to the declaratory relief, the court held there is no constitutional or parliamentary duty to exercise the vote in the form of a secret ballot and therefore such relief could not be granted by the court.
  • The Court went onto note that National Assembly Rule 102A(1) which provides that any member may formulate and request to have a motion of no confidence served before and voted for in the National Assembly and also provides for the motion to be brought to the notice of members of the National Assembly.
  • The court held that such a rule obliged the Speaker of the National Assembly to prioritise such a motion of no confidence and that it should be scheduled, debated and voted upon within a reasonable period and that any failure with such a duty would be subject to judicial review.
  • However as noted in Mazibuko NO v Sisulu and Others, the Constitutional Court did not stipulate what would constitute reasonable as no predetermined time was set but that such must merely be accorded priority.
  •  The court held that in this instance, the Speaker had fulfilled its duty in scheduling the motion of no confidence even though it was after the parliamentary recess and that there was no indication to the Speaker not being fit and proper to hold such a position. Therefore such an application was dismissed.

Free State Province v Terra Graphics (Pty) Ltd and Another

  • The Free State Provincial Government in granting a tender to Terra Graphics (Pty) Ltd, yet after the work had been completed had refused payment on the grounds that such work conducted by the company had not been budgeted for was done so on false grounds.
  • The Court held that in doing so, the Provincial Government had exercised their power unconscionably and that they failed to exercise their powers in a transparent and accountable manner and thus such conduct was invalid.

Disclaimer: All information contained herein does not constitute legal advice in any form or manner nor is it intended. All legal advice must be obtained or gained from a consultation with a qualified lawyer. The views and opinions expressed are those of the cited authors and not those of the publishers of iGazette. iGazette accepts no liability for any information which may be incorrect.

© Rui Lopes. All Rights Reserved.

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