The Powers of the President(Western Cape Legislature)
Executive Council of the Western Cape Legislature and Others vs President of the Republic of South Africa and Others (1995)
Does the President have the right to both make and execute laws?
Can the Constitutional Court find the President’s law-making powers – conferred on him by Parliament – unconstitutional?
Background
Under apartheid there were no real checks and balances between the three arms of government – the legislature, the executive, and the judiciary. This facilitated the abuse of power by the government. With the Interim Constitution, however, the state was now defined by the principle of ‘separation of powers’. Specific functions, duties, and responsibilities were allocated to different arms of government: the legislature has the power to make, amend, and repeal rules of law; the executive, headed by the President, has the power to execute and enforce rules of law; and the judiciary has the power to resolve disputes and to interpret the law.
In 1995, as the first democratic local elections were approaching, the newly elected Parliament adopted the Local Government Transition Act to restructure local government. This Act also gave the President the power to amend the Act. Acting in terms of the powers given to him by the Act, President Mandela enacted two proclamations.
The members of the Executive Council of the Western Cape Legislature, which was led by the National Party, challenged the President’s right to make these amendments.
Path to the Constitutional Court
The Executive Council of the Western Cape Legislature was granted direct access to the Constitutional Court under section 100(2) of the Interim Constitution – a provision that states that the rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so.
Some of the Arguments
Executive Council of the Western Cape Legislature
The Executive Council of the Western Cape Legislature argued that Parliament may not empower the President to make legislation, and to the extent that the President had done so, he had acted in conflict with the principle of the separation of powers intrinsic in the Constitution. They also argued that the proclamations were unconstitutional because they were in violation of Constitutional Principle 22 in the Interim Constitution which states that the national government shall not exercise powers which encroach upon the powers of the provinces.
The President of the Republic of South Africa
In response, the President argued that the Constitutional Principles which were enshrined in the Interim Constitution applied to the writing of the final Constitution and did not apply to the transitional period. The President also argued that those provisions of the Constitutional Principles dealing with the status and powers of provinces related to the future and not the present.
What did the Constitutional Court decide?
The Court held unanimously that the Presidential proclamations were invalid, and that the changes which were made by the proclamations were outside the scope of the powers vested in the President. The Court held that only Parliament has the power to amend the Act. The new Constitution allocates legislative power to Parliament and the provincial legislatures.
It stated that at this early stage of the development of the new constitutional order, it was of crucial importance to establish respect for the principle that the Constitution is supreme. The Court confirmed that its duty is to declare legislative and executive action, which is inconsistent with the Constitution, to be invalid and then to deal with the consequences of invalidity in accordance with the provisions of the Constitution.
The legislature may not empower the President to legislate and to the extent that the President had purported to do so, he had acted in conflict with the Constitution.
Justice Kate O’Regan
22 November 2011
The issues raised in the present case are, however, of fundamental importance. They concern the powers of Parliament and how it is required to function under the Constitution … Constitutional control over such matters goes to the root of a democratic order … insistence upon the executive not exceeding its powers are important safeguards in the Constitution.
Justice Arthur Chaskalson
from the Western Cape Judgment, 22 September 1995
Impact and Significance
Within an hour of the Court’s judgment, and despite having lost the case, President Nelson Mandela informed the media that he accepted the Court’s judgment. Mandela categorically solidified the supremacy of the Constitution and the legitimacy of the Constitutional Court.
As soon as I was informed of the judgment, I called a press conference and appealed to the general public to respect the decision of the highest court in the land on constitutional matters.
Preparations for local government elections must continue so that these elections take place as planned. The Court’s judgment does not create any crisis whatsoever. I should emphasise that the judgment of the Court confirms that our new democracy is taking firm root and that nobody is above the law.
President Nelson Mandela
22 September 1995
The judgment was delivered five weeks before the first democratic local elections. Some parties believed that declaring the proclamations invalid would have disastrous consequences, and would lead to the delay of the elections.
Six months prior to this case, on 14 February 1995, President Mandela had inaugurated the Constitutional Court in an office building complex in Braamfontein. The judges were honoured by being inaugurated in the presence of President Mandela – not knowing that six months later they would be striking down two of his proclamations.
EXPLORE THE ARCHIVE
Images
Article from Die Burger.
