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ConLaw:Ch9 Institutions & Other Independent Bodies Cheat Sheet (DRAFT) by

Chapter 9 establishes institutions to as one way to strengthen democracy

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Ch9 Key Provisions

S181(2): Indepe­ndant and subject only to Con/Law. Must be importial and perform powers wo fear.
s181(3): Must be protected to ensure indepe­ndence, impart­iality, dignity
s193 and s194 : Appoin­tment and Removal - same as CC Judge
Instit­ution
Power
1. Public Protector
Take appropiate remedial action (binding?)
2. SAHRC
Take steps to secure approp­riate redress where HR have been violated (recom­mendary power)
3. Cultural Commission
Advise and report on issues concerning (Advisory power)
Gender Commission
Advise and report on... (advisory)

Role of Ch9 Instit­utions

1. Checking on/being a watchdog of Govt
2. Contri­buting t transf­orming SA into a society where SJ prevails
3. They reccomend, do not have power of review/set aside leg
4. Theu do not have power to take discip­lanary action against govt officials.
5. Role is Invest­igatory and Admini­str­ative
6. Important in terms of realising con individual rights
7. Assist organs of state in adherinf to new consti­tut­ional dispen­sation

Indepe­ndence of Instit­utions

Often Conflict will arise as they are meant o act as watchdogs on gov and also work with exec and leg
- Consti­tution guarantees their indepe­ndence in saying that they are only subject only to law and Con
- they are accoun­table to NA and must report on their perfor­mance annually
- Parliament sets their budget - financial indepe­ndence
 

Aslam Commission

Concerned with efficiency & Cost of bodies bs there was an overlap in mandate & resources were not used well
Questions enforc­ement rights and whether the bodies had the "­tee­th" to do their work.
Recomm­end­ations
- Merge gender, HRC and Cultural Com
- Add youth com and lang board

The Auditor - General

- Supreme audit instit­ution in country
- Produces financial and compliance audits of provincial and national depart­ments, munici­pal­ities, public entities etc.
- Ensures the proper use of public funds as these public reports indicate how arms of government managing their budgets.
- Regulated by Public Audit Act
- AG appointed for a fixed non renewable term between 5-10yrs

SAHRC

- Designed to protect and promote human rights
- HR Commission Act empowers commission to resolve disputes by mediation, concil­iation, or negoti­ation.
- Can rectify any act or omission in relation to a fundam­ental right.
- Has power to make recomm­end­ations and findings which are not binding.
- Public bodies have consti­tut­ional duty assist in effect­iveness and recomm­end­ations are usually acted on

CGE

- Must promote respect for GE & the protec­tion, develo­pment & attainment of GE
- CGE Act which sets out the details of the commis­sion's functions and powers:
1) to monitor; 2) to educate; 3) invest­igate and settle compla­ints; 4) to conduct research; 5) to advocate for gender equality; 6) to report, advise and make recomm­end­ations 6) to litigate

CRLC

- Stands for The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Commun­ities
- The CRLC is governed by the Consti­tution and the CRLC Act. Respon­sible for:
1) deepening apprec­iation for variation of cultures, religions and languages in SA
2) contri­buting meanin­gfully and constr­uct­ively to social transf­orm­ation and nation­-bu­ilding for the attainment of a South African

The EC

The Act states that the management of elections is the primary function of the Commission
S190 states that the EC must:
1. Manage elections of legisl­ative bodies in accordance with legisl­ation
2. ensure that those elections are free and fair;
3. declare the results of those elections within a period that must be prescribed by national legisl­ation and that is as short as reasonably possible and more
The ElC must be composed of at least three persons up to 5
 

The Public Protector

Interm­ediary between state and citizens by receiving complaints against an organ of state.
Therea­fter, they can invest­igate, report back on an take approp­riate remedial action against elavant organ
Regulated by the PP Act and s182 of Consti­tution.
Appointed for 7yrs - non renewable
- Important in fight against corruption as litigation not possible for many citizens - she their voice
- Must have have resources to do this job.
- National Legisl­ation cannot water down powers offered to PP in Con s182(2 &3)
EFF/DA v Speaker of NA
Facts: PP received complaints abt security upgrades at Zuma's Nkandla home & invest­igated. Conclusion was the Zuma breached con obliga­tions in s96 oby knowingly deriving undue benefit from state resources.
RAction: President must determine reasonable costs of non-se­curity improv­ements, repay a reasonable percentage of these costs, reprimand ministers involved, and to report to the NA in 14 days.
NA set up 2 ad hoc committees to examine report. Endorsed report by Minister which exonerated the President. The president did not comply w action
EFF wanted legally binding effect of the PP’s report confirmed, an order that the President comply with the report and a declar­ation that the Presid­ent/NA were in breach of their consti­tut­ional obliga­tions. The DA launched a similar applic­ation
CC has exclusive jurisd­iction: only court that can decide whether president has failed to fulfil consti­tut­ional obligation and in so far as matters relate to NA
President of RSA v Office of PP
Facts: Pres seeks review of PP’s ‘State of Capture’ report abt complaints of alleged unethical conduct by the pres, certain state functi­onaries & the Guptas
RAction President was to appoint of commission of inquiry to invest­igate the matters in her report.
The Presid­ent’s argued tha PP couldnt delegate powers to a commission of inquiry.
Public protector act gives PP wide invest­igatory powers once she receives a complaint, and recomm­ending action
Concl:PP did not delegate powers to a CoI. She responded to 3 compla­ints, made prima facie findings and then her remedial action was the CoI..
+PPA empowers her to get assistance in invest­iga­tions.
Breach of the Ethics Act? No, She invest­igated & found this the approp­riate action.The taking of remedial action by PP isnt contingent upon a finding of injustice. She is expressly empowered to make findin­gs/­reccs on the basis of prelim­inary or PF findings
Her action is binding
Legal Affect of RAction
- PP is empowered to take action that has effect if its the best attempt at curing the cause of the complaint.
- Contra­diction to s181/182 which says her recomm­end­ations can be disreg­arded on rational basis. However, Rule of Law states that decisions cannot be disreg­arded if based on consti­tution.
- NA can invest­igate correc­tness of findings, but must comply with resolu­tions unless a court of law set them aside.
DA v PP
The Estina Vrede Dairy Project was establ­ished to direct public funds to empower indigent farmers in the FS & develop local agricu­lture. The aim of this R250 million project was to empower black farmers however no bank statements can prove this. A shell corpor­ation through which money was siphoned.
National treasury invest­igated and compiled a report.
- Findings relating to misconduct of many officials within the department of the Free States
- Public protector report on the issue- taken over by Mkhwebane who narrows scope of the invest­igation
- Finds gross neglig­ence, irregu­lar­ities, maladm­ini­str­ation and reccs some discip­linary action against certain officials, but doesnt invest­igate link between the project & Gupta family, claiming she didn’t have resources. But a lot of the work already done by Treasu­ry/­Mad­onsela
- Irrational by ignoring important complaints & failing consti­tut­ional duty
- Did not prove she had open mind that her goal was to ascertain the truth.
Report is criticised as being uncons­tit­uti­onal, set aside, public protector office to pay costs, with Mkhwebane paying some personally