CaseNotes LogoCaseNotes
  • Home
  • Library
  • Research
  • Discussion Hub
  • Wiki
  • Latin Dictionary
  • Question Bank
  • Settings
S

Student

Student Account

South African Law • Jurisdictional Corpus
HomeLibraryResearchQuestionsSettings
Judicial Precedent
Ask AI

Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others

Citation1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC); CCT 27/95
JurisdictionZA
Area of Law
Constitutional Law
Free account

Get the most out of this judgment

Create a free CaseNotes account to save this case, see how it's cited, get an AI summary, and search 10,000+ SA judgments.

Create free accountor sign in
Administrative Law
Local Government Law
Separation of Powers

Facts of the Case

This case arose from a dispute between the Executive Council of the Western Cape and the national government regarding amendments to the Local Government Transition Act (LGTA). The President promulgated Proclamations R58 and R59 in June 1995, purportedly under section 16A of the LGTA, which transferred power to appoint and dismiss Provincial Committee members from provincial to national government and invalidated certain provincial decisions regarding local government demarcation. The Western Cape government challenged the validity of both the proclamations and section 16A itself. Section 16A had been inserted into the LGTA in November 1994, allowing the President to amend the Act by proclamation with approval from parliamentary committees and subject to potential parliamentary disapproval. The case was heard urgently as the local government elections were scheduled for 1 November 1995.

Legal Issues

  • Whether section 16A of the Local Government Transition Act constitutes an impermissible delegation of legislative power by Parliament to the President
  • Whether the challenged Proclamations violated Constitutional Principle XXII regarding provincial integrity
  • Whether the Proclamations were inconsistent with sections 61 and 62 of the Constitution concerning manner and form requirements
  • Whether the President had power under section 235(8) of the Constitution to assign and amend the LGTA
  • Whether the Court should exercise its powers under section 98(5) to temporarily preserve the validity of section 16A and proclamations made under it

Judicial Outcome

The Court declared section 16A of the Local Government Transition Act invalid but suspended the declaration of invalidity until 25 October 1995 to allow Parliament to correct the defect. All proclamations made under section 16A, including R58 and R59, were declared invalid but remained temporarily in force. The Respondents were ordered to pay costs to the Applicants (excluding wasted costs from the August postponement). Parliament was given the opportunity to validate the proclamations through proper legislative action before the election date.

Ratio Decidendi

Parliament may delegate subordinate legislative authority to implement laws, but cannot delegate plenary legislative power, including the power to amend Acts of Parliament, to the President or any other body. Such delegation would violate the principle of constitutional supremacy enshrined in section 4 of the Constitution and the 'manner and form' requirements in sections 59-61, which prescribe how laws must be made and changed. Under the interim Constitution, legislative authority vests in Parliament subject to the Constitution, and laws must be made 'in accordance with' the Constitution. Any delegation must be within the framework of a statute and cannot effectively allow the President to exercise legislative power that Parliament itself could only exercise by following prescribed constitutional procedures. The Constitution's separation of powers and allocation of legislative authority to Parliament cannot be circumvented through delegation.

Obiter Dicta

Chaskalson P suggested that exceptional circumstances such as war or emergencies might permit delegation of powers to act contrary to normal 'manner and form' requirements by necessary implication, though this was not decided. He also noted that section 98(5) allows the Court to give Parliament an opportunity to correct constitutional defects without immediately invalidating everything done under invalid provisions. On section 235(8), there was significant obiter discussion about whether the LGTA could be assigned to provinces - the majority held it could but disagreed on whether the proclamations fell within permissible amendments. Sachs J discussed the concept of 'reading down' and suggested section 16A might potentially have been saved if it had contained clear guidelines structured around section 235 principles. Several judges emphasized that the Court's role is not to 'second guess' the executive or legislature but to ensure constitutional compliance. Chaskalson P also addressed the Third Applicant's public statement suggesting potential bias, noting that such statements undermine constitutionalism itself, though he did not pursue contempt proceedings given the apology tendered.

Legal Significance

This was one of the first major Constitutional Court decisions on separation of powers and parliamentary delegation under South Africa's interim Constitution. It established important principles that: (1) Parliament cannot delegate plenary legislative power, including power to amend Acts, to the executive; (2) while subordinate regulatory delegation is permissible, it must be within the framework established by the enabling statute; (3) Constitutional Principles in Schedule 4 apply to the drafting of the final Constitution, not to interpreting the interim Constitution; (4) the Court will exercise remedial flexibility under section 98(5) to avoid constitutional crises while maintaining constitutional supremacy. The case affirmed the shift from parliamentary sovereignty to constitutional supremacy. It also demonstrated the Court's willingness to balance strict constitutional principle with pragmatic governance needs, particularly during the transition to democracy. The different judgments reveal ongoing debates about the proper scope of executive power, the interpretation of transitional provisions, and the balance between provincial autonomy and national authority.

Case relationship graph

Case Network

Explore 13 related cases • Click to navigate

Current Case
Related Case

Cited By 50 Cases

  • AAA Investments (Proprietary) Limited v The Micro Finance Regulatory Council and Another2006 (11) BCLR 1255 (CC) (also reported as CCT 51/05)
    Cites

    Authority for principle that legislative powers may be delegated and rules derive validity from delegating legislation.

  • African National Congress and Another v Minister of Local Government and Housing, KwaZulu-Natal and Others(CCT 19/97) [1998] ZACC 4 (24 March 1998)
    Applies

    Applied to interpret section 245(1) of the interim Constitution, holding that only the Transition Act would govern restructuring of local government and that…

  • Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others
    Cites

    Cited at para 51 for the proposition that delegation postulates revocable transmission of subsidiary authority; also cited at para 173.

  • Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others(CCT 39/10) [2010] ZACC 26
    Cites

    Cited for the definition of delegation as 'revocable transmission of subsidiary authority', and for the principle that delegation is often necessary for the…

Practice This Case

Sign up to practise IRAC analysis, issue spotting, and argument building on this case.

  • Besserglik v The Minister of Trade, Industry and Tourism and othersCCT 34/95
    Cites

    Cited to support the proposition that an application for direct access is an extraordinary procedure to be followed in exceptional circumstances only.

  • Bongani Dlamini v The State; Vusi Dladla and Others v The State; The State v Mark David Joubert; The State v Jan Johannes Schietekat1999 (4) SA 623 (CC); 1999 (7) BCLR 771 (CC); CCT 21/98; CCT 22/98; CCT 2/99; CCT 4/99
    Cites

    The judgment cites this case to outline the complexity of transitional provisions and the difficulties they entailed, as well as a precedent for granting…

  • Case and Curtis v The Minister of Safety and Security and OthersCCT 20/95 and CCT 21/95; 1996 (5) BCLR 609 (CC)
    Cites

    Cited as an example where the court temporarily suspended the invalidity of a statute due to serious consequences for good government.

  • Case, Patrick and Case, Inga v The Minister of Safety and Security and Others; Curtis, Stephen Roy v The Minister of Safety and Security and Others(CCT 20/95) [1996] ZACC 5
    Cites

    Cited as one of two instances in which the Court has temporarily suspended the invalidity of a statute, emphasising the serious consequences for good…

  • Christian Education South Africa v The Minister of Education of the Government of the Republic of South AfricaCCT 13/98
    Follows

    Followed as one of several cases emphasising that direct access is an extraordinary procedure to be granted only in exceptional circumstances.

  • Cross-Border Road Transport Agency v Central African Road Services (Pty) Limited and Another[2015] ZACC 12
    Cites

    Court cites this case to explain the normal consequences of a declaration of invalidity after the lapse of a suspension period and the rationale for granting…

  • Democratic Alliance and Michael Sean Moriarty v Amos Masondo N.O. and Minister of Provincial and Local GovernmentCCT 29/02
    Cites

    Cited to describe the process of local government transition.

  • De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others(CCT 5/03) [2003] ZACC 19
    Cites

    Cited for the principle that schedules to an Act form part of the enactment and are binding except where there is a clear conflict with a relevant section.

  • Dlamini v The State; Dladla and Others v The State; The State v Joubert; The State v Schietekat1999 (4) SA 623 (CC); 1999 (7) BCLR 771 (CC)
    Cites

    Cited to outline the complexity and difficulties entailed in the continuation of state business during transition, and also cited regarding the grant of direct…

  • DVB Behuising (Pty) Limited v North West Provincial Government and Another (Western Cape Provincial Government and Others Intervening)Case CCT 22/99, decided 2 March 2000
    Applies

    Applied to explain the purpose of section 235 of the interim Constitution and the allocation of executive authority under old laws.

  • Elias Tsotetsi v Mutual and Federal Insurance Company LtdCase CCT 16/95 (Constitutional Court, decided 12 September 1996)
    Applies

    Applied the discretion to allow direct access in exceptional circumstances, citing this case as an example where there was a compelling national interest due…

  • Elsie Gundwana v Steko Development CC and Others(CCT 44/10) [2011] ZACC 14
    Cites

    Cited for the principle that direct access is granted only in exceptional circumstances.

  • Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and OthersCCT 7/98 [Decided on 14 October 1998]
    Cites

    Cited for the explanation that the LGTA was a turn-key operation intended to govern reconstruction of local government from A to Z.

  • In re: Certification of the Constitution of the Republic of South Africa, 19961996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC); Case CCT 23/96
    Cites

    Used to provide a pen-picture of the government at the time and the complex issues of bringing the country together and establishing a constitutional state.

  • International Trade Administration Commission v SCAW South Africa (Pty) Ltd (with Bridon International Limited intervening)(CCT 59/09) [2010] ZACC 6
    Cites

    Cited as an example of a judgment recognising the doctrine of separation of powers as part of our constitutional architecture.

  • Justice Alliance of South Africa v President of the Republic of South Africa; Freedom Under Law v President of the Republic of South Africa; Centre for Applied Legal Studies v President of the Republic of South Africa(CCT 53/11) [2011] ZACC 23
    Cites

    Cited for the proposition that Parliament may delegate subordinate regulatory authority, but cannot assign plenary legislative power.

  • Maximum Profit Recovery (Pty) Ltd v Sakhisizwe Local MunicipalityCase No.: 1086/2019, High Court of South Africa (Eastern Cape Division, Makhanda), unreported judgment delivered 18 March 2025
    Cites

    Cited for the principle that policy determinations cannot override, amend or be in conflict with laws; otherwise the separation between legislature and…

  • Member of the Executive Council for Local Government and Development Planning of the Western Cape Province and Another v Paarl Poultry Enterprises CC t/a Rosendal Poultry FarmCase CCT 38/01 (Constitutional Court, decided 14 December 2001)
    Cites

    The Court cites this case for its discussion of the tentative and incomplete nature of transition provisions for non-metropolitan or rural areas in the LGTA at…

  • Minister of Defence and Military Veterans v Thomas[2015] ZACC 26
    Cites

    Cited for the principle that functionaries in the provincial administration of the public service are appointed by the provincial government, are answerable to…

  • Minister of Health and Professor D McIntyre NO v New Clicks South Africa (Pty) Ltd and OthersCCT 59/04; 2005 (2) SA 530 (CC)
    Cites

    Cited for principle that Parliament can delegate subordinate legislative authority

  • Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC); Case CCT 55/00
    Cites

    Cited for the principle that the separation of powers prescribed by the Constitution is not absolute and that action inconsistent with the separation is…

  • Minister of Water and Environmental Affairs v Kloof Conservancy(106/2015) [2015] ZASCA 177 (27 November 2015)
    Cites

    Cited for the proposition that the principles of co-operative government are set out in s 41 of the Constitution.

  • Muzamani Samuel Mashavha v The President of the Republic of South Africa and Others(CCT 67/03) [2004] ZACC 6 (6 September 2004)
    Follows

    The Court applies this case's reasoning regarding the constitutional context and scheme of transitional arrangements in the interim Constitution.

  • National Credit Regulator v Getbucks (Pty) Ltd and Another(140/2020) [2021] ZASCA 28 (26 March 2021)
    Cites

    Cited to explain that 'after consultation with' means that the functionary must have regard to the views of the other functionary but is not bound by them.

  • New Nation Movement NPC and Others v President of the Republic of South Africa and Others[2020] ZACC 11
    Cites

    Cited for guidance on the impossibility of undoing what has taken place pursuant to elections and the need to limit retrospective effect.

  • Pharmaceutical Society of South Africa and Others v The Minister of Health and Another; New Clicks South Africa (Pty) Limited v Dr Manto Tshabalala-Msimang NO and AnotherCase Nos 542/04 and 543/04
    Cites

    The Constitutional Court held that it is not the function of the judiciary to second guess the executive or legislative branches but adherence to prescribed…

  • R A Le Sueur and R A Le Sueur N.O. & Others v Ethekwini Municipality and OthersCase No. 9714/11, High Court of South Africa, KwaZulu-Natal, Pietermaritzburg
    Cites

    Court cites Kriegler J's remark that the Local Government Transition Act governed the metamorphosis of local government structures up to the point where…

  • Savoi and Others v National Director of Public Prosecutions and Another[2014] ZACC 5
    Cites

    Cited for the historical context of parliamentary supremacy and the ability of Parliament to enact retrospective laws before the Constitution.

  • Smit v Minister of Justice and Correctional Services and Others[2020] ZACC 29
    Cites

    Cited for the principle that delegating plenary legislative power to the Executive is impermissible.

  • South African Association of Personal Injury Lawyers v HeathCCT 27/00 (reported at 2001 (1) SA 883 (CC))
    Applies

    Applied to enforce the constitutional separation of powers by setting aside a presidential proclamation on the grounds that the enabling provision violated the…

  • S v Bhulwana and S v GwadisoCCT 12/95 and CCT 11/95
    Applies

    The court applies the principles set out in this unreported Constitutional Court judgment concerning the court's discretion under section 98(5) and (6) of the…

  • Tendai Laxton Biti and The Movement for Democratic Change v The Minister of Justice, Legal and Parliamentary Affairs and The Attorney-GeneralS.C. 10/02, Civil Application No. 46/02
    Cites

    Cited for the principle that all branches of government are subject to the provisions of the Constitution.

  • The Affordable Medicines Trust and Others v The Minister of Health of the Republic of South Africa and Others(CCT 27/04) [2005] ZACC 3
    Cites

    Cited for the principle that Parliament can delegate subordinate regulatory authority to other bodies.

  • The AParty and Another v Minister for Home Affairs and Others; Moloko and Others v Minister for Home Affairs and Another[2009] ZACC 4
    Cites

    Cited to support the principle that compelling reasons are required for direct access to the Constitutional Court.

  • The Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others1996 (4) SA 671 (CC)
    Cites

    Cited for the proposition that Constitutional Principles in Schedule 4 define the principles with which a new constitutional text must comply and that the new…

  • The City of Cape Town and Minister of Provincial and Local Government v Anita Marie Robertson and Guy Trevor Robertson(CCT 19/04) [2004] ZACC 21
    Cites

    The court cites this case for general background on the constitutional context of the transformation of local government and for the rule that the Constitution…

  • The Greater Johannesburg Transitional Metropolitan Council v EskomCase No: 536/97
    Cites

    Cited to describe the executive authority under the 1983 Constitution, explaining that executive authority was vested in the State President and exercised by…

  • The Premier of KwaZulu-Natal and Others v The President of the Republic of South Africa and OthersCCT 36/95
    Applies

    Applied to support propositions that constitutional amendments in conflict have pro tanto repeal effect and that Constitutional Principles relate to the future…

  • The Premier of the Province of the Western Cape v The President of the Republic of South AfricaCCT 26/98
    Cites

    Court cites this case when noting that no contention was made that the President's power to amend schedules by proclamation was inconsistent with the…

  • The Speaker of the National Assembly v Patricia De Lille MPCase No: 297/98
    Cites

    Cited for the proposition that no Parliament, official or institution is immune from judicial scrutiny regarding constitutional authority.

  • The State v Kholekile Witness Thunzi and Siyabulela Mlonzi(CCT 81/09) [2010] ZACC 27
    Cites

    This Court cites this case as an example of when the Court, after the hearing, realised there were questions that had not been addressed and invited parties to…

  • The Unlawful Occupiers of The School Site v The City of JohannesburgCase number: 36/2004 (SCA) [unreported - not yet reported at time of judgment]
    Cites

    Cited for the distinction between 'in consultation with' requiring concurrence and 'after consultation with' requiring only good faith consideration of views.

  • Thomas v Minister of Defence and Military Veterans(506/2013) [2014] ZASCA 109
    Applies

    This case held that provincial governments have the right to coordinate functions of provincial administration and that functionaries in provincial…

  • Transvaal Agricultural Union v Minister of Land Affairs and the Commission on Restitution of Land RightsCase CCT 21/96 (Constitutional Court, decided 18 November 1996)
    Distinguishes

    Court distinguishes the Western Cape case, which involved exceptional urgency regarding imminent elections, from the present case which lacks comparable…

  • Uniqon Wonings (Pty) Ltd v City of Tshwane Metropolitan Municipality(20789/2014) [2014] ZASCA 182 (30 November 2015)
    Cites

    Cited to describe the Transition Act as part of the statutory scaffolding necessary before, during and after the transition of national and provincial…

  • Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another(CCT 78/07) [2008] ZACC 12
    Cites

    Cited for the purpose of the President's power to amend or adapt laws to achieve a fit between old laws and the new constitutional order.

    • Explore More Cases

    More Constitutional Law cases

    • (1) Petros Makaza (2) Golden Nhika v The State and (1) Khumbuzo Gumbo (2) Sydney Ndachengedzwa v The StateCCZ 16/17 (Const. Application No. CCZ 5/13 and Const. Application No. CCZ 102/13)
    • (1) Tungamirai Madzokere (2) Lazarus Maengahama (3) Stanford Maengahama (4) Phineous Nhatarikwa (5) Stanford Mangwiro (6) Yvonne Musarurwa (7) Rebecca Mafukeni v The StateSC 8/12; Civil Application No. 318/11
    • 68 Wolmarans Street Johannesburg (Pty) Ltd and Others v Tufh Limited(1263/2022) [2024] ZASCA 48 (15 April 2024)
    • AAA Investments (Proprietary) Limited v The Micro Finance Regulatory Council and Another2006 (11) BCLR 1255 (CC) (also reported as CCT 51/05)
    • Aaron Musiteyi v The StateHMT 2-21, B 09/21
    • Abahlali baseMjondolo Movement SA and Another v Premier of the Province of KwaZulu-Natal and Others(CCT 12/09) [2009] ZACC 31
    • AB and Another v Minister of Social Development[2016] ZACC 43
    • AB and Another v Pridwin Preparatory School and Others[2020] ZACC 12

    More South Africa cases

    • 3M South Africa (Pty) Ltd v The Commissioner for the South African Revenue Service(272/09) [2010] ZASCA 20 (23 March 2010)
    • 4 Seasons Logistics CC v Kgotse(1215/2023) [2026] ZASCA 09 (04 February 2026)
    • 4 Seasons Logistics CC v Nicholas Ngwanammoto Kgotse(1215/2023) [2026] ZASCA 09 (4 February 2026)
    • 4-Tune Investments (Pty) Ltd v Kingsgate Body CorporateCSOS 4565/WC/22 (Adjudication Order, 29 November 2023)
    • 68 Wolmarans Street Johannesburg (Pty) Ltd and Others v Tufh Limited(1263/2022) [2024] ZASCA 48 (15 April 2024)
    • 9 on Rydal Vale Court Body Corporate v Pan African Holdings Pty LtdCSOS-4563/KZN/23 (Adjudication Order, 8 November 2023)
    • AAA Investments (Proprietary) Limited v The Micro Finance Regulatory Council and Another
    2006 (11) BCLR 1255 (CC) (also reported as CCT 51/05)
  • A A Alloy Foundry (Pty) Limited v Titaco Projects (Pty) LimitedCase No. 309/97