Case  CCT304/20
[2021] ZACC 46

Hearing Date: 11 May 2021

Judgement Date: 08 December 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 8 December 2021 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Supreme Court of Appeal, hearing an appeal from the High Court of South Africa, KwaZulu Natal Division, Pietermaritzburg. The matter related to the validity of the appointments of two Municipal Managers, which was challenged on the basis of alleged non-compliance with section 54A of the Local Government Municipal Systems Act 32 of 2000 (Systems Act).

In 2017, the third and sixth respondents, Messrs Jili and Sibiya respectively, were appointed as Municipal Managers of the first and fourth respondents, Nkandla Local Municipality and Mthonjaneni Local Municipality. Both appointments were challenged by the applicant, the Member of the Executive Council for the Department of Cooperative Governance and Traditional Affairs, KwaZulu-Natal (MEC), on the basis that Mr Jili’s experience at management level was less than the stipulated minimum period of five years and that Mr Sibiya’s qualifications were irrelevant for the position and that he did not have the required experience at management level. The applicant accordingly argued that the appointments were made in contravention of section 54A(2) of the Systems Act and were null and void as envisaged in section 54A(3) of the Systems Act. On this basis, the MEC launched two separate review applications in the High Court seeking orders reviewing, setting aside and declaring null and void the appointments of Messrs Jili and Sibiya. The High Court dealt with both matters in one judgment, in which it upheld the applications and declared both appointments null and void. However, it ordered that the setting aside of the appointments should not operate retrospectively and should rather take effect from the date of its order. The High Court subsequently granted leave to appeal to the Supreme Court of Appeal. In the majority judgment, supported through a separate concurrence, that Court upheld the appeals, whilst the dissenting judgment would have dismissed them. The MEC appealed to the Constitutional Court seeking an order reversing the Supreme Court of Appeal’s judgment and declaring the appointments of Messrs Jili and Sibiya null and void.

The first judgment, penned by Tshiqi J (with Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J and Pillay AJ concurring) (majority) held that the matter was moot and that it was not in the interests of justice for the matter to be determined. The Court accordingly refused leave to appeal.

The majority held that, since the matter concerned the exercise of public power by the MEC as well as the interpretation of section 54A of the Systems Act, a constitutional issue was raised and the jurisdiction of the Court was engaged.

The majority proceeded to determine whether the interests of justice required leave to appeal to be granted. It held that the central enquiry in this regard was whether there were reasonable prospects that the Constitutional Court would reverse or materially alter the decision of the Supreme Court of Appeal. Since one of the arguments before the Court was that the matter was moot, the majority held that it was first necessary to decide whether the matter was moot because if this question were to be answered in the affirmative, no purpose would be served by granting leave to appeal.

The majority held that the principles applicable to mootness are trite: courts should not decide matters that are abstract or academic and which do not have any practical effect, either on the parties before the court or the public at large. The majority held that this question is a positive one, namely whether a judgment or order of the court will have a practical effect and not whether it will be of importance for a hypothetical future case. The majority added that a matter is also moot if it no longer presents an existing or live controversy. However, the majority emphasised that where the interests of justice so require, a court still has a discretion to determine a matter despite its mootness.

In deciding whether the matter was moot, the majority emphasised that section 54A of the Systems Act, the provision relied on by the MEC, had been declared invalid by the Constitutional Court in the matter of South African Municipal Workers’ Union v Minister of Co-operative Governance & Traditional Affairs [2017] ZACC 7 (SAMWU). In declaring section 54A invalid, the Constitutional Court had specified that the invalidity would operate prospectively and would be suspended for a period of 24 months. The period of suspension ended on 8 March 2019, after which that provision ceased to exist. The majority accordingly held that there could be no reliance by the MEC on section 54A to seek an order to declare the appointments null and void because it was invalid and therefore unenforceable. Furthermore, the majority held that since section 54A was declared to be of no force and effect after 8 March 2019, some 15 days after the High Court had delivered its judgment, this meant that the declaration of invalidity of the relevant appointments based on that section can only relate to the period before 9 March 2019. The majority emphasised, however, that the MEC sought a declaration of invalidity operating only from the date of the judgment of the Constitutional Court. Thus, the majority held that the order sought was not competent because a declaration of unlawfulness of the appointments, which is based on the non-existent section and operates from the date of delivery of the Court’s order, would effectively suggest that the invalid provision continued to operate even after the suspension period had expired. Since the order sought could not be granted, the majority held that the matter was moot.

Having found that the matter was moot, the majority then considered whether the interests of justice demanded the determination of the matter despite its mootness. The majority noted that it was troubling that a period of more than four years had passed since the allegedly invalid appointments were made, meaning that persons whose qualifications and experience were questioned by the MEC had been allowed to occupy the critical position of a Municipal Manager for the bulk of the period of their five-year contract. The majority held that the delays that led to this state of affairs were largely occasioned by the failure on the part of the MEC to comply with the timelines prescribed by the Systems Act and later on by the delay in initiating the review applications. The majority held that this failure by the MEC flies in the face of section 237 of the Constitution and the Court’s jurisprudence, both of which emphasise the importance of constitutional obligations being performed diligently and without delay. The majority held that these delays could not be ignored by the Court in deciding whether it was in the interests of justice to determine the matter, and that the undesirability of having Municipal Managers, whose credentials were questioned by the MEC, had to be weighed against the prejudice they would suffer if the application was entertained after they had occupied the positions for such a long period of time. The majority also considered the possible impact of the termination of the contracts on service delivery in the affected Municipalities, and held that the reality was that the respective contracts would come to an end on 18 December 2021 for Mthonjaneni Local Municipality and 25 January 2022 for Nkandla Local Municipality. This meant that by the time the Court handed down judgment they would be left with only a month or so before the natural expiry of their employment contracts. The majority also took into account the fact that no complaints were raised regarding the Municipal Managers’ competence and performance, and that the MEC had not identified any prejudice that it would suffer as a result of the contracts being preserved for the remainder of the fixed five-year term.

Taking all of this into consideration, the majority held that an order that Messrs Jili and Sibiya should retain their employment for the rest of the five-year period would ensure that service delivery in the Municipalities would not be compromised and that a handover to their successors would occur seamlessly. Consequently, the Constitutional Court held that the interests of justice did not favour granting leave to appeal and the application was accordingly refused, with each party being ordered to pay its own costs.

The second judgment, penned by Theron J (with Tlaletsi AJ concurring), concurred in the order proposed by the majority, albeit for different reasons. Its starting point was that a matter is moot when the order sought would have no practical effect. According to the second judgment, a matter is not moot when it would be legally incompetent to grant the order sought (this being a factor that has a bearing on prospects of success). In this case, the MEC sought orders declaring that the appointments of Mr Jili and Mr Sibiya were unlawful. Notwithstanding that there was only a short time remaining in their terms of office, the removal of either Mr Jili or Mr Sibiya would have practical consequences for them personally, the Municipalities they serve and the residents within these Municipalities. The second judgment therefore concluded that the matter was not moot.

The second judgment disagreed with the majority’s finding that an order declaring that the appointments were ultra vires section 54A of the Systems Act and setting them aside could only relate to the period before the SAMWU order of invalidity came into effect on 9 March 2019. In SAMWU, the Constitutional Court declared section 54A unconstitutional and stated that the declaration of invalidity would be suspended until 9 March 2019 to allow the Legislature to cure the defect and that the invalidity, should it come into effect upon the expiry of the two-year suspension period, would operate prospectively. The order was made prospective to avoid unsettling the legal consequences of, amongst others, appointments of municipal managers that had been made in terms of section 54A while it remained in force. The second judgment reasoned that this necessarily entailed the preservation of causes of action based on decisions and actions taken under section 54A. The prospectivity of the SAMWU order was therefore intended to preserve the legal consequences of the appointments made in this case, which were made before the order of invalidity came into effect. The second judgment concluded that it would therefore be contrary to the Court’s judgment in SAMWU if the coming into effect of the order invalidating section 54A were to render litigation based on section 54A moot and denude courts of their power to grant orders regarding the validity of appointments made while the section was in force. It would also be contrary to the well-established rule of construction that even if a new statute (or an order invalidating a statute) is intended to be retrospective in so far as it affects vested rights and obligations, it is nonetheless presumed not to affect matters that are the subject of pending legal proceedings. The second judgment also noted that in Notyawa v Makana Municipality [2019] ZACC 43, which concerned the review of an appointment of a municipal manager in terms of section 54A that was heard after 9 March 2019, the Constitutional Court implicitly accepted that even though section 54A was at that stage a dead letter, the challenge before it gave rise to a live dispute that was not rendered moot by the SAMWU order coming into effect.

The second judgment explained that the Court’s power to declare the appointments unlawful is sourced directly from section 172(1)(a) of the Constitution and not section 54A, and is therefore not contingent upon the validity of that section. Moreover, according to the doctrine of objective constitutional invalidity, law or conduct that is inconsistent with the Constitution is unlawful from the moment at which the inconsistency arises. An order declaring the appointments to be unlawful would merely describe the unlawfulness of the appointments at the moment they were made, when section 54A was in force. Upon declaring that the appointments were unlawful in terms of section 172(1)(a) of the Constitution, the Court would then have the power, in terms of section 172(1)(b), to make any order that is just and equitable, including an order setting aside the appointments prospectively from the date of its order. This remedial power is triggered by a declaration of invalidity in terms of section 172(1)(a) and does not depend on the validity or invalidity of section 54A at the time it is exercised.

This led the second judgment to conclude that the coming into effect of the SAMWU order did not render the applications moot and would not denude the Court of its power to set aside the appointments with prospective effect from the date of its order. It concluded, however, that the lawfulness of the appointments did not arise for determination because it would not be in the interests of justice to grant leave to appeal. In deciding the merits of the appeal, the Court would have to determine, first, whether the Supreme Court Appeal was correct that the MEC’s delays in launching the review applications were unreasonable and then, secondly, whether there was a basis for interfering with the exercise of its discretion to refuse to condone the delays. The second judgment agreed with the Supreme Court of Appeal’s finding that the delays in respect of both the Nkandla and Mthonjaneni review applications were unreasonable. It concluded further that the Supreme Court of Appeal exercised its discretion to refuse condonation properly and that there was no misdirection on either the facts or the law. There were therefore no reasonable prospects of the Constitutional Court interfering with the Supreme Court of Appeal’s refusal to grant condonation.

For these reasons, the second judgment concurred in the order made by the majority.

The Full judgment  here 

Chapter 4

Parliament (ss 42-82)

    1. Composition of Parliament
      1. Parliament consists of-
        1. the National Assembly; and
        2. the National Council of Provinces.
      2. The National Assembly and the National Council of Provinces participate in the legislative process in the manner set out in the Constitution.
      3. The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.
      4. The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.
      5. The President may summon Parliament to an extraordinary sitting at any time to conduct special business.
      6. The seat of Parliament is Cape Town, but an Act of Parliament enacted in accordance with section 76 (1) and (5) may determine that the seat of Parliament is elsewhere.

    1. Legislative authority of the Republic
      In the Republic, the legislative authority-
      1. of the national sphere of government is vested in Parliament, as set out in section 44;
      2. of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104; and
      3. of the local sphere of government is vested in the Municipal Councils, as set out in section 156.


    1. National legislative authority
      1. The national legislative authority as vested in Parliament-
        1. confers on the National Assembly the power-
          1. to amend the Constitution;
          2. to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
          3. to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and
        2. confers on the National Council of Provinces the power-
          1. to participate in amending the Constitution in accordance with section 74;
          2. to pass, in accordance with section 76, legislation with regard to any matter within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with section 76; and
          3. to consider, in accordance with section 75, any other legislation passed by the National Assembly.
      2. Parliament may intervene, by passing legislation in accordance with section 76 (1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary-
        1. to maintain national security;
        2. to maintain economic unity;
        3. to maintain essential national standards;
        4. to establish minimum standards required for the rendering of services; or
        5. to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.
      3. Legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4 is, for all purposes, legislation with regard to a matter listed in Schedule 4.
      4. When exercising its legislative authority; Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.


  1. Joint rules and orders and joint committees
    1. The National Assembly and the National Council of Provinces must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council, including rules and orders-
      1. to determine procedures to facilitate the legislative process, including setting a time limit for completing any step in the process;
      2. to establish joint committees composed of representatives from both the Assembly and the Council to consider and report on Bills envisaged in sections 74 and 75 that are referred to such a committee;
      3. to establish a joint committee to review the Constitution at least annually; and
      4. to regulate the business of-
        1. the joint rules committee;
        2. the Mediation Committee;
        3. the constitutional review committee; and
        4. any joint committees established in terms of paragraph (b).
    2. Cabinet members, members of the National Assembly and delegates to the National Council of Provinces have the same privileges and immunities before a joint committee of the Assembly and the Council as they have before the Assembly or the Council.


The National Assembly (ss 46-59)
  1. Composition and election
      1. The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that-
        1. is prescribed by national legislation;
        2. is based on the national common voters roll;
        3. provides for a minimum voting age of 18 years; and
        4. results, in general, in proportional representation.

    [Sub-s. (1) amended by s. 1 of the Constitution Tenth Amendment Act of 2003 and by s. 1 of the Constitution Fifteenth Amendment Act of 2008.]
       
    1. An Act of Parliament must provide a formula for determining the number of members of the National Assembly.

    1. Membership
        1. Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except-
          1. anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than-
            1. the President, Deputy President, Ministers and Deputy Ministers; and
            2. other office-bearers whose functions are compatible with the functions of a member of the Assembly, and have been declared compatible with those functions by national legislation;
          2. permanent delegates to the National Council of Provinces or members of a provincial legislature or a Municipal Council;
          3. unrehabilitated insolvents;
          4. anyone declared to be of unsound mind by a court of the Republic; or
          5. anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
        2. A person who is not eligible to be a member of the National Assembly in terms of subsection (1) (a) or (b) may be a candidate for the Assembly, subject to any limits or conditions established by national legislation.
        3. A person loses membership of the National Assembly if that person-
          1. ceases to be eligible;
          2. is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership; or
          3. ceases to be a member of the party that nominated that person as a member of the Assembly.
      [Sub-s. (3) substituted by s. 2 of the Constitution Tenth Amendment Act of 2003 and by s. 2 of the Constitution Fifteenth Amendment Act of 2008.]
         
      1. Vacancies in the National Assembly must be filled in terms of national legislation.


    1. Oath or affirmation
      Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.


    1. Duration of National Assembly
        1. The National Assembly is elected for a term of five years.
        2. If the National Assembly is dissolved in terms of section 50, or when its term expires, the President, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the Assembly was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of the National Assembly.

      [Sub-s. (2) substituted by s. 1 of Act 2 of 1999.]
      1. If the result of an election of the National Assembly is not declared within the period established in terms of section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside.
      2. The National Assembly remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next Assembly.


    1. Dissolution of National Assembly before expiry of its term
      1. The President must dissolve the National Assembly if-
        1. the Assembly has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
        2. three years have passed since the Assembly was elected.
      2. The Acting President must dissolve the National Assembly if-
        1. there is a vacancy in the office of President; and
        2. the Assembly fails to elect a new President within 30 days after the vacancy occurred.


    1. Sittings and recess periods
        1. After an election, the first sitting of the National Assembly must take place at a time and on a date determined by the Chief Justice, but not more than 14 days after the election result has been declared. The Assembly may determine the time and duration of its other sittings and its recess periods.

      [Sub-s. (1) substituted by s. 1 of Act 34 of 2001.]
      1. The President may summon the National Assembly to an extraordinary sitting at any time to conduct special business.
      2. Sittings of the National Assembly are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience, and if provided for in the rules and orders of the Assembly.


    1. Speaker and Deputy Speaker
        1. At the first sitting after its election, or when necessary to fill a vacancy, the National Assembly must elect a Speaker and a Deputy Speaker from among its members.
        2. The Chief Justice must preside over the election of a Speaker, or designate another judge to do so. The Speaker presides over the election of a Deputy Speaker.

      [Sub-s. (2) substituted by s. 2 of Act 34 of 2001.]
      1. The procedure set out in Part A of Schedule 3 applies to the election of the Speaker and the Deputy Speaker.
      2. The National Assembly may remove the Speaker or Deputy Speaker from office by resolution. A majority of the members of the Assembly must be present when the resolution is adopted.
      3. In terms of its rules and orders, the National Assembly may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.


    1. Decisions
      1. Except where the Constitution provides otherwise-
        1. a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill;
        2. at least one third of the members must be present before a vote may be taken on any other question before the Assembly; and
        3. all questions before the Assembly are decided by a majority of the votes cast.
      2. The member of the National Assembly presiding at a meeting of the Assembly has no deliberative vote, but-
        1. must cast a deciding vote when there is an equal number of votes on each side of a question; and
        2. may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the Assembly.


    1. Rights of certain Cabinet members and Deputy Ministers in the National Assembly
      The President, and any member of the Cabinet or any Deputy Minister who is not a member of the National Assembly, may, subject to the rules and orders of the Assembly, attend and speak in the Assembly, but may not vote.

[S. 54 substituted by s. 3 of Act 34 of 2001.]
       


    1. Powers of National Assembly
      1. In exercising its legislative power, the National Assembly may-
        1. consider, pass, amend or reject any legislation before the Assembly; and
        2. initiate or prepare legislation, except money Bills.
      2. The National Assembly must provide for mechanisms-
        1. to ensure that all executive organs of state in the national sphere of government are accountable to it; and
        2. to maintain oversight of-
          1. the exercise of national executive authority, including the implementation of legislation; and
          2. any organ of state.


    1. Evidence or information before National Assembly
      The National Assembly or any of its committees may-
      1. summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
      2. require any person or institution to report to it;
      3. compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
      4. receive petitions, representations or submissions from any interested persons or institutions.


    1. Internal arrangements, proceedings and procedures of National Assembly
      1. The National Assembly may-
        1. determine and control its internal arrangements, proceedings and procedures; and
        2. make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
      2. The rules and orders of the National Assembly must provide for-
        1. the establishment, composition, powers, functions, procedures and duration of its committees;
        2. the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy;
        3. financial and administrative assistance to each party represented in the Assembly in proportion to its representation, to enable the party and its leader to perform their functions in the Assembly effectively; and
        4. the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition.


    1. Privilege
        1. Cabinet members, Deputy Ministers and members of the National Assembly-
          1. have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and
          2. are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
            1. anything that they have said in, produced before or submitted to the Assembly or any of its committees; or
            2. anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.

      [Sub-s. (1) amended by s. 4 of Act 34 of 2001.]
      1. Other privileges and immunities of the National Assembly, Cabinet members and members of the Assembly may be prescribed by national legislation.
      2. Salaries, allowances and benefits payable to members of the National Assembly are a direct charge against the National Revenue Fund.


    1. Public access to and involvement in National Assembly
      1. The National Assembly must-
        1. facilitate public involvement in the legislative and other processes of the Assembly and its committees; and
        2. conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
          1. to regulate public access, including access of the media, to the Assembly and its committees; and
          2. to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
      2. The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.


National Council of Provinces (ss 60-72)

    1. Composition of National Council
      1. The National Council of Provinces is composed of a single delegation from each province consisting of ten delegates.
      2. The ten delegates are-
        1. four special delegates consisting of-
          1. the Premier of the province or, if the Premier is not available, any member of the provincial legislature designated by the Premier either generally or for any specific business before the National Council of Provinces; and
          2. three other special delegates; and
        2. six permanent delegates appointed in terms of section 61 (2).
      3. The Premier of a province, or if the Premier is not available, a member of the province's delegation designated by the Premier, heads the delegation.

    1. Allocation of delegates
        1. Parties represented in a provincial legislature are entitled to delegates in the province's delegation in accordance with the formula set out in Part B of Schedule 3.
          1. A provincial legislature must, within 30 days after the result of an election of that legislature is declared-
            1. determine, in accordance with national legislation, how many of each party's delegates are to be permanent delegates and how many are to be special delegates; and
            2. appoint the permanent delegates in accordance with the nominations of the parties.
          2. .....

      [Para. (b) omitted by s. 1 of the Constitution Fourteenth Amendment Act of 2008.]

      [Sub-s. (2) substituted by s. 1 of the Constitution Ninth Amendment Act of 2002 and by s. 1 of the Constitution Fourteenth Amendment Act of 2008.] 

      1. The national legislation envisaged in subsection (2) (a) must ensure the participation of minority parties in both the permanent and special delegates' components of the delegation in a manner consistent with democracy.
      2. The legislature, with the concurrence of the Premier and the leaders of the parties entitled to special delegates in the province's delegation, must designate special delegates, as required from time to time, from among the members of the legislature.

    1. Permanent delegates
        1. A person nominated as a permanent delegate must be eligible to be a member of the provincial legislature.
        2. If a person who is a member of a provincial legislature is appointed as a permanent delegate, that person ceases to be a member of the legislature.
        3. Permanent delegates are appointed for a term that expires-
          1. immediately before the first sitting of the provincial legislature after its next election.
          2. .....

      [Para. (b) omitted by s. 2 of the Constitution Fourteenth Amendment Act of 2008.]
           

      [Sub-s. (3) substituted by s. 2 of the Constitution Ninth Amendment Act of 2002 and by s. 2 of the Constitution Fourteenth Amendment Act of 2008.]
         
      1. A person ceases to be a permanent delegate if that person-
        1. ceases to be eligible to be a member of the provincial legislature for any reason other than being appointed as a permanent delegate;
        2. becomes a member of the Cabinet;
        3. has lost the confidence of the provincial legislature and is recalled by the party that nominated that person;
        4. ceases to be a member of the party that nominated that person and is recalled by that party; or
        5. is absent from the National Council of Provinces without permission in circumstances for which the rules and orders of the Council prescribe loss of office as a permanent delegate.
      2. Vacancies among the permanent delegates must be filled in terms of national legislation.
      3. Before permanent delegates begin to perform their functions in the National Council of Provinces, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

    1. Sittings of National Council
      1. The National Council of Provinces may determine the time and duration of its sittings and its recess periods.
      2. The President may summon the National Council of Provinces to an extraordinary sitting at any time to conduct special business.
      3. Sittings of the National Council of Provinces are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience, and if provided for in the rules and orders of the Council.


    1. Chairperson and Deputy Chairpersons
        1. The National Council of Provinces must elect a Chairperson and two Deputy Chairpersons from among the delegates.
        2. The Chairperson and one of the Deputy Chairpersons are elected from among the permanent delegates for five years unless their terms as delegates expire earlier.
        3. The other Deputy Chairperson is elected for a term of one year, and must be succeeded by a delegate from another province, so that every province is represented in turn.
        4. The Chief Justice must preside over the election of the Chairperson, or designate another judge to do so. The Chairperson presides over the election of the Deputy Chairpersons.

      [Sub-s. (4) substituted by s. 5 of Act 34 of 2001.]
      1. The procedure set out in Part A of Schedule 3 applies to the election of the Chairperson and the Deputy Chairpersons.
      2. The National Council of Provinces may remove the Chairperson or a Deputy Chairperson from office.
      3. In terms of its rules and orders, the National Council of Provinces may elect from among the delegates other presiding officers to assist the Chairperson and Deputy Chairpersons.

    1. Decisions
      1. Except where the Constitution provides otherwise-
        1. each province has one vote, which is cast on behalf of the province by the head of its delegation; and
        2. all questions before the National Council of Provinces are agreed when at least five provinces vote in favour of the question.
      2. An Act of Parliament, enacted in accordance with the procedure established by either subsection (1) or subsection (2) of section 76, must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf.


    1. Participation by members of national executive
      1. Cabinet members and Deputy Ministers may attend, and may speak in, the National Council of Provinces, but may not vote.
      2. The National Council of Provinces may require a Cabinet member, a Deputy Minister or an official in the national executive or a provincial executive to attend a meeting of the Council or a committee of the Council.


    1. Participation by local government representatives
      Not more than ten part-time representatives designated by organised local government in terms of section 163, to represent the different categories of municipalities, may participate when necessary in the proceedings of the National Council of Provinces, but may not vote.


    1. Powers of National Council
      In exercising its legislative power, the National Council of Provinces may-
      1. consider, pass, amend, propose amendments to or reject any legislation before the Council, in accordance with this Chapter; and
      2. initiate or prepare legislation falling within a functional area listed in Schedule 4 or other legislation referred to in section 76 (3), but may not initiate or prepare money Bills.


    1. Evidence or information before National Council
      The National Council of Provinces or any of its committees may-
      1. summon any person to appear before it to give evidence on oath or affirmation or to produce documents;
      2. require any institution or person to report to it;
      3. compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
      4. receive petitions, representations or submissions from any interested persons or institutions.


    1. Internal arrangements, proceedings and procedures of National Council
      1. The National Council of Provinces may-
        1. determine and control its internal arrangements, proceedings and procedures; and
        2. make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
      2. The rules and orders of the National Council of Provinces must provide for-
        1. the establishment, composition, powers, functions, procedures and duration of its committees;
        2. the participation of all the provinces in its proceedings in a manner consistent with democracy; and
        3. the participation in the proceedings of the Council and its committees of minority parties represented in the Council, in a manner consistent with democracy, whenever a matter is to be decided in accordance with section 75.


    1. Privilege
      1. Delegates to the National Council of Provinces and the persons referred to in sections 66 and 67 -
        1. have freedom of speech in the Council and in its committees, subject to its rules and orders; and
        2. are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
          1. anything that they have said in, produced before or submitted to the Council or any of its committees; or
          2. anything revealed as a result of anything that they have said in, produced before or submitted to the Council or any of its committees.
      2. Other privileges and immunities of the National Council of Provinces, delegates to the Council and persons referred to in sections 66 and 67 may be prescribed by national legislation.
      3. Salaries, allowances and benefits payable to permanent members of the National Council of Provinces are a direct charge against the National Revenue Fund.


    1. Public access to and involvement in National Council
      1. The National Council of Provinces must-
        1. facilitate public involvement in the legislative and other processes of the Council and its committees; and
        2. conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
          1. to regulate public access, including access of the media, to the Council and its committees; and
          2. to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
      2. The National Council of Provinces may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.


National Legislative Process (ss 73-82)

    1. All Bills
        1. Any Bill may be introduced in the National Assembly.
        2. Only a Cabinet member or a Deputy Minister, or a member or committee of the National Assembly, may introduce a Bill in the Assembly, but only the Cabinet member responsible for national financial matters may introduce the following Bills in the Assembly:
          1. a money Bill; or
          2. a Bill which provides for legislation envisaged in section 214.

      [Sub-s. (2) substituted by s. 1 (a) of Act 61 of 2001.]
        1. A Bill referred to in section 76 (3), except a Bill referred to in subsection (2) (a) or (b) of this section, may be introduced in the National Council of Provinces.

      [Sub-s. (3) substituted by s. 1 (b) of Act 61 of 2001.]
      1. Only a member or committee of the National Council of Provinces may introduce a Bill in the Council.
      2. A Bill passed by the National Assembly must be referred to the National Council of Provinces if it must be considered by the Council. A Bill passed by the Council must be referred to the Assembly.


    1. Bills amending the Constitution
      1. Section 1 and this subsection may be amended by a Bill passed by-
        1. the National Assembly, with a supporting vote of at least 75 per cent of its members; and
        2. the National Council of Provinces, with a supporting vote of at least six provinces.
      2. Chapter 2 may be amended by a Bill passed by-
        1. the National Assembly, with a supporting vote of at least two thirds of its members; and
        2. the National Council of Provinces, with a supporting vote of at least six provinces.
      3. Any other provision of the Constitution may be amended by a Bill passed-
        1. by the National Assembly, with a supporting vote of at least two thirds of its members; and
        2. also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment-
          1. relates to a matter that affects the Council;
          2. alters provincial boundaries, powers, functions or institutions; or
          3. amends a provision that deals specifically with a provincial matter.
      4. A Bill amending the Constitution may not include provisions other than constitutional amendments and matters connected with the amendments.
      5. At least 30 days before a Bill amending the Constitution is introduced in terms of section 73 (2), the person or committee intending to introduce the Bill must-
        1. publish in the national Government Gazette, and in accordance with the rules and orders of the National Assembly, particulars of the proposed amendment for public comment;
        2. submit, in accordance with the rules and orders of the Assembly, those particulars to the provincial legislatures for their views; and
        3. submit, in accordance with the rules and orders of the National Council of Provinces, those particulars to the Council for a public debate, if the proposed amendment is not an amendment that is required to be passed by the Council.
      6. When a Bill amending the Constitution is introduced, the person or committee introducing the Bill must submit any written comments received from the public and the provincial legislatures-
        1. to the Speaker for tabling in the National Assembly; and
        2. in respect of amendments referred to in subsection (1), (2) or (3) (b), to the Chairperson of the National Council of Provinces for tabling in the Council.
      7. A Bill amending the Constitution may not be put to the vote in the National Assembly within 30 days of-
        1. its introduction, if the Assembly is sitting when the Bill is introduced; or
        2. its tabling in the Assembly, if the Assembly is in recess when the Bill is introduced.
      8. If a Bill referred to in subsection (3) (b), or any part of the Bill, concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned.
      9. A Bill amending the Constitution that has been passed by the National Assembly and, where applicable, by the National Council of Provinces, must be referred to the President for assent.


    1. Ordinary Bills not affecting provinces
      1. When the National Assembly passes a Bill other than a Bill to which the procedure set out in section 74 or 76 applies, the Bill must be referred to the National Council of Provinces and dealt with in accordance with the following procedure:
        1. The Council must-
          1. pass the Bill;
          2. pass the Bill subject to amendments proposed by it; or
          3. reject the Bill.
        2. If the Council passes the Bill without proposing amendments, the Bill must be submitted to the President for assent.
        3. If the Council rejects the Bill or passes it subject to amendments, the Assembly must reconsider the Bill, taking into account any amendment proposed by the Council, and may-
          1. pass the Bill again, either with or without amendments; or
          2. decide not to proceed with the Bill.
        4. A Bill passed by the Assembly in terms of paragraph (c) must be submitted to the President for assent.
      2. When the National Council of Provinces votes on a question in terms of this section, section 65 does not apply; instead-
        1. each delegate in a provincial delegation has one vote;
        2. at least one third of the delegates must be present before a vote may be taken on the question; and
        3. the question is decided by a majority of the votes cast, but if there is an equal number of votes on each side of the question, the delegate presiding must cast a deciding vote.


    1. Ordinary Bills affecting provinces
      1. When the National Assembly passes a Bill referred to in subsection (3), (4) or (5), the Bill must be referred to the National Council of Provinces and dealt with in accordance with the following procedure:
        1. The Council must-
          1. pass the Bill;
          2. pass an amended Bill; or
          3. reject the Bill.
        2. If the Council passes the Bill without amendment, the Bill must be submitted to the President for assent.
        3. If the Council passes an amended Bill, the amended Bill must be referred to the Assembly, and if the Assembly passes the amended Bill, it must be submitted to the President for assent.
        4. If the Council rejects the Bill, or if the Assembly refuses to pass an amended Bill referred to it in terms of paragraph (c), the Bill and, where applicable, also the amended Bill, must be referred to the Mediation Committee, which may agree on-
          1. the Bill as passed by the Assembly;
          2. the amended Bill as passed by the Council; or
          3. another version of the Bill.
        5. If the Mediation Committee is unable to agree within 30 days of the Bill's referral to it, the Bill lapses unless the Assembly again passes the Bill, but with a supporting vote of at least two thirds of its members.
        6. If the Mediation Committee agrees on the Bill as passed by the Assembly, the Bill must be referred to the Council, and if the Council passes the Bill, the Bill must be submitted to the President for assent.
        7. If the Mediation Committee agrees on the amended Bill as passed by the Council, the Bill must be referred to the Assembly, and if it is passed by the Assembly, it must be submitted to the President for assent.
        8. If the Mediation Committee agrees on another version of the Bill, that version of the Bill must be referred to both the Assembly and the Council, and if it is passed by the Assembly and the Council, it must be submitted to the President for assent.
        9. If a Bill referred to the Council in terms of paragraph (f) or (h) is not passed by the Council, the Bill lapses unless the Assembly passes the Bill with a supporting vote of at least two thirds of its members.
        10. If a Bill referred to the Assembly in terms of paragraph (g) or (h) is not passed by the Assembly, that Bill lapses, but the Bill as originally passed by the Assembly may again be passed by the Assembly, but with a supporting vote of at least two thirds of its members.
        11. A Bill passed by the Assembly in terms of paragraph (e), (i) or (j) must be submitted to the President for assent.
      2. When the National Council of Provinces passes a Bill referred to in subsection (3), the Bill must be referred to the National Assembly and dealt with in accordance with the following procedure:
        1. The Assembly must-
          1. pass the Bill;
          2. pass an amended Bill; or
          3. reject the Bill.
        2. A Bill passed by the Assembly in terms of paragraph (a) (i) must be submitted to the President for assent.
        3. If the Assembly passes an amended Bill, the amended Bill must be referred to the Council, and if the Council passes the amended Bill, it must be submitted to the President for assent.
        4. If the Assembly rejects the Bill, or if the Council refuses to pass an amended Bill referred to it in terms of paragraph (c), the Bill and, where applicable, also the amended Bill must be referred to the Mediation Committee, which may agree on-
          1. the Bill as passed by the Council;
          2. the amended Bill as passed by the Assembly; or
          3. another version of the Bill.
        5. If the Mediation Committee is unable to agree within 30 days of the Bill's referral to it, the Bill lapses.
        6. If the Mediation Committee-agrees on the Bill as passed by the Council, the Bill must be referred to the Assembly, and if the Assembly passes the Bill, the Bill must be submitted to the President for assent.
        7. If the Mediation Committee agrees on the amended Bill as passed by the Assembly, the Bill must be referred to the Council, and if it is passed by the Council, it must be submitted to the President for assent.
        8. If the Mediation Committee agrees on another version of the Bill, that version of the Bill must be referred to both the Council and the Assembly, and if it is passed by the Council and the Assembly, it must be submitted to the President for assent.
        9. If a Bill referred to the Assembly in terms of paragraph (f) or (h) is not passed by the Assembly, the Bill lapses.
      3. A Bill must be dealt with in accordance with the procedure established by either subsection (1) or subsection (2) if it falls within a functional area listed in Schedule 4 or provides for legislation envisaged in any of the following sections:
        1. Section 65 (2);
        2. section 163;
        3. section 182;
        4. section 195 (3) and (4);
        5. section 196; and
        6. section 197.
      4. A Bill must be dealt with in accordance with the procedure established by subsection (1) if it provides for legislation-
        1. envisaged in section 44 (2) or 220 (3); or
        2. envisaged in Chapter 13, and which affects the financial interests of the provincial sphere of government.
      5. A Bill envisaged in section 42 (6) must be dealt with in accordance with the procedure established by subsection (1), except that-
        1. when the National Assembly votes on the Bill, the provisions of section 53 (1) do not apply; instead, the Bill may be passed only if a majority of the members of the Assembly vote in favour of it; and
        2. if the Bill is referred to the Mediation Committee, the following rules apply:
          1. If the National Assembly considers a Bill envisaged in subsection (1) (g) or (h), that Bill may be passed only if a majority of the members of the Assembly vote in favour of it.
          2. If the National Assembly considers or reconsiders a Bill envisaged in subsection (1) (e), (i) or (j), that Bill may be passed only if at least two thirds of the members of the Assembly vote in favour of it.
      6. This section does not apply to money Bills.

    1. Money Bills
      1. A Bill is a money Bill if it-
        1. appropriates money;
        2. imposes national taxes, levies, duties or surcharges;
        3. abolishes or reduces, or grants exemptions from, any national taxes, levies, duties or surcharges; or
        4. authorises direct charges against the National Revenue Fund, except a Bill envisaged in section 214 authorising direct charges.
      2. A money Bill may not deal with any other matter except-
        1. a subordinate matter incidental to the appropriation of money;
        2. the imposition, abolition or reduction of national taxes, levies, duties or surcharges;
        3. the granting of exemption from national taxes, levies, duties or surcharges; or
        4. the authorisation of direct charges against the National Revenue Fund.
      3. All money Bills must be considered in accordance with the procedure established by section 75. An Act of Parliament must provide for a procedure to amend money Bills before Parliament.


[S. 77 substituted by s. 2 of Act 61 of 2001.]
       

    1. Mediation Committee
      1. The Mediation Committee consists of-
        1. nine members of the National Assembly elected by the Assembly in accordance with a procedure that is prescribed by the rules and orders of the Assembly and results in the representation of parties in substantially the same proportion that the parties are represented in the Assembly; and
        2. one delegate from each provincial delegation in the National Council of Provinces, designated by the delegation.
      2. The Mediation Committee has agreed on a version of a Bill, or decided a question, when that version, or one side of the question, is supported by-
        1. at least five of the representatives of the National Assembly; and
        2. at least five of the representatives of the National Council of Provinces.

    1. Assent to Bills
      1. The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.
      2. The joint rules and orders must provide for the procedure for the reconsideration of a Bill by the National Assembly and the participation of the National Council of Provinces in the process.
      3. The National Council of Provinces must participate in the reconsideration of a Bill that the President has referred back to the National Assembly if-
        1. the President's reservations about the constitutionality of the Bill relate to a procedural matter that involves the Council; or
        2. section 74 (1), (2) or (3) (b) or 76 was applicable in the passing of the Bill.
      4. If, after reconsideration, a Bill fully accommodates the President's reservations, the President must assent to and sign the Bill; if not, the President must either-
        1. assent to and sign the Bill; or
        2. refer it to the Constitutional Court for a decision on its constitutionality.
      5. If the Constitutional Court decides that the Bill is constitutional, the President must assent to and sign it.


    1. Application by members of National Assembly to Constitutional Court
      1. Members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is unconstitutional.
      2. An application-
        1. must be supported by at least one third of the members of the National Assembly; and
        2. must be made within 30 days of the date on which the President assented to and signed the Act.
      3. The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if-
        1. the interests of justice require this; and
        2. the application has a reasonable prospect of success.
      4. If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs.


    1. Publication of Acts - A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.


  1. Safekeeping of Acts of Parliament - The signed copy of an Act of Parliament is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping.

 

 
Clerk Programme for German Trainee Lawyers

Starting in 2008, a special post will also be created for German trainee lawyers to apply to the Court to work as a law clerk for a period of three months (though recommended is a minimum period of four months), starting each year in January and July. As the Court has no funds to pay salaries or travel expenses this post is ideal for referendare students seeking to fulfill their four month practical experience requirements. The post is not, however, limited to such candidates.

Applicants will need to be available for a minimum period of four months, although any applicants seeking a longer-term post will also be considered. The Court is only able to take one legal trainee each term. Successful applicants will participate in the two week orientation programme run by the Court for law clerks in order to provide the requisite training for the post. This training will include an introduction to relevant computer research tools such as Jutastat, Lexis Nexis and Westlaw, as well as an in-depth explanation of reference materials available in the Court Library

Roles and duties

Specific responsibilities may vary between chambers but include:

  • writing analytical summaries of written argument or evidence and assessing arguments in the light of academic legal literature and case law;
    carrying out detailed research on particular topics;
  • preparing pre-hearing memoranda, media summaries and opinions as well as identifying key issues in matters to be heard;
  • assisting the judge in Court;
  • taking detailed notes of oral argument during hearings;
  • assisting the judge in Court-related work such as committees, organisational work and international human-rights work;
  • cite-checking draft judgments before delivery;
  • taking part in various clerks' committees;
  • administration of Court papers and case management; and
  • public relations.


Trainee lawyers' workload varies during the year and will depend on the demands made by an individual judge. The working hours are flexible and chamber specific.

Skills and qualifications

Trainee lawyers are required to have the following skills:

  • knowledge of, and the ability to apply legal principles, concepts and procedures;
  • familiarity and experience in the use of a variety of legal research sources, including electronic sources;
  • excellent English language and writing skills;
  • computer proficiency;
  • analytical skills;
  • drafting skills, including the ability to write clearly and concisely and under pressure;
  • the ability to plan work and manage conflicting priorities; and
  • the capacity to work independently and in a team setting.


Some training will be provided to new trainee lawyers by the Orientation Committee during the two week orientation period. A postgraduate degree (juristisches staatsexamen) is substitutable for the LLB degree or equivalent requirement

Benefits of participating in the programme 

German trainee lawyers taking part in the programme will achieve an extra qualification. Successful candidates will also have the benefit of taking part in the work of the Court and gain experience in a legal system based on human rights and democracy. It is also hoped that the programme will improve the co-operation and understanding between South Africa and Germany more broadly.

Eligibility and appointment

Applications for clerkships to this programme will be considered twice a year. Applications for the programme commencing in January, must be received by 31 July of the previous year; And for commencement in July applications must be received by 31 December of the previous year.

The application should indicate whether all judges, or a specific judge is being applied to, as well as and the period for which the applicants wish to be considered. Applicants must be in possession of an LLB (or equivalent) or in their final year of study for such degree and have an interest in subjects relating to constitutional law. Applications must also include, as a minimum:

  • a motivational cover letter;
  • a full curriculum vitae;
  • certified copies of academic records;
  • an example of written work;
  • names and contact details of two references (one academic/professional and one personal); and
  • references regarding working experience and/or any special qualifications (if appropriate).


Applications must be sent electronically to Mr Mosala Sello at This email address is being protected from spambots. You need JavaScript enabled to view it. and his contact number is 011 359 7444

Failure to comply with these requirements will result in the application not being considered.

In addition to the application requirements, applicants for the programme must also demonstrate the ability to cover travel to and from Johannesburg and living expenses whilst working at the Court.

In some cases a judge may request that a telephone interview be held with the applicant.

Womanity JP Molemela 07 April 2016
Womanity Justice Khampepe 14 April 2016