n African Human Rights Law Journal - Power and constraints in the Constitution of the Republic of South Africa 1996




This article starts with the trite proposition that a constitutional democracy functions optimally when adequate power is afforded to elected representatives on condition that the power is exercised in accordance with constitutional checks and balances. The article emphasises the importance of the constitutional constraints on the exercise of public power. Section 1 of the South African Constitution presents the fundamental premises of the Constitution and sets out a vision of the type of society that the Constitution seeks to attain. The meaning of the rule of law and notions of responsive, accountable and open governance are explored through case law dealing with PAJA and the concept of legality. The ultimate thrust of these judgments is to ensure rationality, propriety and respectful governance. While they constrain the exercise of power, they do so in a manner that accords with the vision set out in section 1 of the Constitution. The article examines the duty to give reasons and analyses some instances where there is cynical compliance with the constitutional obligation to provide reasons and how this detracts from broader constitutional objectives. The Public Protector plays a vital role in ensuring the proper exercise of public power. The article examines two investigations by the Office of the Public Protector. In the PetroSA investigation, the Public Protector simply capitulated and surrendered in the face of power by adopting an irrationally-narrow interpretation of its mandate. In the SAPS lease investigation, a different Public Protector properly investigated and two high-profile functionaries lost their jobs. The consequences for the office of the Public Protector and the effect that these investigations have on the project of realising the type of society promised in section 1 of the Constitution are examined. In the conclusion, questions are asked as to why the jurisprudence of the Constitutional Court and Supreme Court of Appeal are being scrutinised when they have sought, more than other institutions, to attain the objectives of section 1 of the Constitution.


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