First Semester Case Law

Question 1

Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly and Others 2016 (Nkandla Judgment)

Answer 1

• investigation of allegations of improper conduct or irregular spending relating to the security upgrades at Nkandla private residence
• PP concluded that the President failed to act in line with certain constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of state resources. (State Capture Report)
• Failure to comply with binding remedial action - breach of his constitutional obligations ‘to uphold, defend and respect the constitution as the supreme law of the land’ (p83)
• “His is indeed the highest calling to the highest office in the land … And almost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him … He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”

Question 2

Albutt

Answer 2

• Facts: President’s power to give pardon [s84(2)(j)], Special dispensation for crimes committed with a political motive during apartheid: “As a way forward and in the interest of nation-building, national reconciliation and the further enhancement of national cohesion, and in order to make a further break with matters which arise from the conflicts of the past, consideration has therefore been given to the use of the Presidential pardon to deal with this ‘unfinished business’.”
• Victims weren’t given an opportunity to make representations. - This was seen to be irrational, state argued that it wasn’t because bc there was a difference between the amnesty process and granting pardon. SO, was there a rational connection between granting pardons for politically motivated crimes and promoting the TRC and PNURA? NO.
• Judgement 1: Affirmed the Hugo case, all exercises of public power must comply with the CSA. There is no right to a pardon, but is a right to have pardon considered rationally and in good faith. No rational connection in this case.
• Judgement 2: pardon served same purpose as amnesty, so victim still plays central purpose, but wasn’t there. Thus, exclusion of victim participation rendered special dispensation irrational.

Question 3

Democratic Alliance v President of South Africa and Others (Simelane Case)

Answer 3

• Application for confirmation of an order of constitutional invalidity of the appointment, by the President of Mr Menzi Simelane as National Director of Public Prosecutions (NDPP), purportedly in terms of section 179 of the Constitution read with sections 9 and 10 of the National Prosecuting Authority Act 32 of 1998.
• It was held that, in the light of, amongst other factors, the criticisms of Mr Simelane in the Ginwala Enquiry Report and in the Public Service Commission Report, the procedure used by the President and the Minister of Justice and Constitutional Development to appoint Mr Simelane was not rationally related to the purpose for which the power was granted.
• The Court found that the decision taken by the President was thus constitutionally invalid.
  [Rationality review! link between means and end irrational.]

Question 4

What are the facts of the United Democratic Movement v Speaker of the National Assembly 2017 case?

Answer 4

Facts: March 2017 Zuma dismissed Minister and deputy of finance, South Africa moved to Junk Status. UDM, DA, and EFF thus asked Speaker of NA to table a motion of no confidence. Scheduled for 18 April. UDM asked for it to be a secret ballot, so that it was ‘truly democratic’, some direction for this can be found in CSA. Speaker said that couldn’t do that bc no place in the CSA/rules of the assembly to do so, and she entrusted with Responsibility to entrust House is in strict compliance with the CSA. UDM approached CC to determine whether could use secret ballot or not.

Question 5

What was the Majority Judgement of the UDM v Speaker of the NA case?

Answer 5

Speaker’s claim that the CSA/Rules of the NA didn’t allow for a secret ballot was false, only Tlouamma stood in her way. Thus, Speaker has full jurisdiction to grant a secret ballot

Question 6

What does the UDM v Speaker of the NA case say about motions of no confidence?

Answer 6

• “more devastating than impeachment” … “constitutes one of the severest political consequences imaginable - a sword that hangs over the head of the president to force them to always do the right thing.”
• no specific grounds for no confidence.
• attacks all of cabinet, not just the president.

Question 7

What is the EFF and Others v Speaker of the National Assembly and Another 2017 case about? (EFF 2)

Answer 7

• parliamentary mechanisms for holding the president accountable
• the constitutional obligation of the NA to hold him to account
• (NA holding Puma to account for not implementing remedial action of the Public Protector’s report - ‘pay back the money’)

Question 8

What were the orders the EFF raised against the Speaker of the NA in EFF and others v Speaker of the NA and Another 2017?

Answer 8

• paragraphs 24 - 28:
• prayer 2: The NA failed to put necessary motions and process in place to hold the President accountable for violating the CSA by failing to implement the report of the Public Protector.
• prayer 3: the NA failed to scrutinise the violation of the CSA by the President in failing to implement the Report of the Public Protector.
• NA’s alleged failures (in prayers 2 and 3) constitute an infringement of s42(3) and/or 55(2) of CSA, read with s1(c) and (d).
• prayer 5: for the NA to put the requisite motions and processes in place to hold the President accountable for his conduct, (and failures) arising from, and incidental to, the report of the Public Protector.
• prayer 6: convene a committee in parliament/other appropriate independent mechanism to investigate the conduct of the president, in particular if they had made themselves guilty of an offence…

Question 9

What is the constitutional framework set out in EFF and others v Speaker of NA and another?

Answer 9

• CSA adopted principle of separation of powers (President and NE in Ch. 5) s89 and s102 re removal of President from office - these are used to hold president to account, thus, members of NA wield enormous power in this regard (no confidence only needs simple majority, no criteria etc., and protected by s58 re freedom of speech and civil/criminal repercussions)

Question 10

What does the judgement say about s89 of the Constitution?

Answer 10

• paragraph 196: s89(1) implicitly imposes obligation on the NA to make rules specially tailored for an impeachment process contemplated in that section. NA has in breach of s89(1) of the CSA failed to make rules regulating the impeachment process envisaged in that section.

Question 11

What was the Majority Judgement of EFF 2?

Answer 11

• failure of NA to make rules regarding s89(1) is a violation of the section and is invalid.
• failure of NA to determine whether president breached s89(1)(a) or (b) is inconsistent with the section and s42(3) of CSA

Question 12

What was the Democratic Alliance v Speaker of the National Assembly 2016 case about?

Answer 12

• Facts: about legitimacy of the removal of EFF members from the SONA in 2015.
• members of parliament have freedom of speech and are protected from civil/criminal suits and arrests etc re s58(1)(a) (NA) and s71(1)(a) (NCOP) of the CSA.

Question 13

What is the key question raised by DA v Speaker of the NA?

Answer 13

• Is s11 of the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act unconstitutional?
• “the pluralistic nature of our parliamentary system must be given true meaning. It must not start and end with the election to Parliament of the various political parties. Each party and each member of Parliament have a right to full and meaningful participation in and contribution to the parliamentary process and decision-making. By its very nature, Parliament is a deliberative body. Debate is key to the performance of its functions. For deliberation to be meaningful, and members effectively to carry out those functions, it is necessary for debate not to be stifled. Unless all enjoy the right to full and meaningful contribution, the very notion of constitutional democracy is warped.”
• not unconstitutional - Section 11 of the Act is to be read as though the words “other than a member” appear after the word “person” at the beginning of the section.

Question 14

The Helen Suzman Foundation v Speaker of the National Assembly

Answer 14

• Did Parliament fail to fulfil its constitutional obligations “to consider, initiate and prepare, and pass legislation that regulates the state’s response to the threat posed and harm caused by SARS-CoV-2 and COVID-19”?
• Can there ever be such a duty? Yes, sections 55 and 7(2) may “in context and in appropriate circumstances trigger a positive obligation on the part of the Parliament and the Executive to initiate and pass legislation. Whether such a duty exists is a fact specific enquiry and will depend on a consideration of the facts and circumstances in each case.”
• The applicant claimed the Disaster Management Act only conferred short-term powers on Minister to make regulations as long as Parliament cannot exercise their powers to create new, more specific legislation. “Disaster” is defined as “a progressive or sudden, widespread or localised, natural or human-caused occurrence which (a) causes or threatens to cause… death, injury or disease…
• Con Court rejected this. DMA can be used to deal with longer term disasters.

Question 15

Doctors for Life International v Speaker of the National Assembly and others

Answer 15

• Sections 59(1)(a) and 72(1)(a) of the Constitution states the NA and NCOP “must facilitate public involvement in the legislative and other processes” of the two houses of Parliament.
• Application challenging the constitutional validity of four health related Bills on the basis that Parliament failed to fulfill its constitutional obligation to facilitate public involvement when passing the Bills.
• majority held that the obligation to facilitate public involvement is a material part of the law-making process and failure to comply with it renders the resulting legislation invalid. He accordingly declared the Traditional Health Practitioners Act and the Choice on Termination of Pregnancy Amendment Act invalid, but suspended the order of invalidity for eighteen months.
• He also held that Parliament had not acted unreasonably in facilitating public participation in terms of the Dental Technicians Amendment Act as there had been no public interest.
• Yacoob J dissented (Skweyiya J concurring), van der Westhuizen J (wrote concurring dissent in separate judgment).

Question 16

Give a synopsis of the Tongoane and others v Minister of Agriculture and Land Affairs and Others case.

Answer 16

• Application for confirmation of a declaration made by the North Gauteng High Court that various provisions of the Communal Land Rights Act were invalid.
• The High Court had refused to declare the entire Act unconstitutional for Parliament’s failure to enact it in accordance with the correct procedure prescribed in section 76 of the Constitution.
• The Court held that there is a difference between determining whether the National Assembly or the National Council of Provinces has the competence to legislate in a particular field, and determining how a Bill ought properly to be tagged and enacted. These were two different processes for which two different tests were to be applied.
• Reaffirming the decision in Liquor Bill, the Court held any Bill the provisions of which substantially affected the provinces had to to be enacted by the procedure stipulated in section 76 of the Constitution. - - The Court found that Parliament had followed an incorrect procedure in enacting the Act and accordingly declared it invalid in its entirety for want of compliance with the procedures set out in section 76. Judgment: Ngcobo CJ (unanimous).

Question 17

Justice Alliance of South Africa v President of the Republic of South Africa and others, and two similar applications

Answer 17

• Applications for direct access to challenge the constitutional validity of section 8(a) of the Judges’ Remuneration and Conditions of Employment Act (Act) and the President’s extension of the Chief Justice’s term pursuant to it.
• Section 176(1) of the Constitution provides that a Constitutional Court judge holds office for a non-renewable term of 12 years or until he or she reaches the age of 70 years, whichever is sooner, except where an Act of Parliament extends the term of office of a Constitutional Court judge.
• Section 8(a) of the Act purported to allow the President to request a Chief Justice who is about to be discharged from active service to continue in office as the Chief Justice for an additional period determined by the President.
• The Court held that by empowering the President to extend the term of office of the Chief Justice section 8(a) usurped the power the Constitution entrusted to Parliament. Parliament alone has the power to extend a Constitutional Court judge’s term of office. Section 8(a) therefore amounted to an unlawful delegation of a legislative power.
• The Court further held that, properly interpreted, section 176(1) does not permit the singling out of any one Constitutional Court judge, such as the Chief Justice, for the extension of his or her term.
• The Court was unanimous that in this case the extension of the term of office of the Chief Justice only was constitutionally invalid. The Court granted direct access in view of the urgency of the matter, and declared section 8(a) and all conduct pursuant to it unconstitutional, and granted an order that the extension of the term of office of the Chief Justice was of no force and effect

Question 18

President of the Republic of South Africa and Another v Hugo

Answer 18

• ‘Whether the President is exercising constitutional powers as head of the executive (i.e. the Cabinet) or as head of state, he is acting as an executive organ of government. His powers are neither legislative nor judicial and there is no fourth branch of government.’

Question 19

President of the Republic of South Africa v Office of the Public Protector and Others (State Capture)

Answer 19

• ‘The primary question, that is pertinently raised in this case, is whether the President’s constitutional power to appoint a commission of inquiry can permissibly be limited by remedial action taken by the Public Protector.
• ‘To sum up, even though the Constitution vests in the President the power to appoint a commission of inquiry, this power is not an untrammelled one; it must be exercised within the constraints that the Constitution imposes. The President’s power to appoint a commission of inquiry will necessarily be curtailed where his ability to conduct himself without constraint brings him into conflict with his obligations under the Constitution.’ [71]

Question 20

SARFU III

Answer 20

Constitutional Court observed that:
- “The constraints upon the President when exercising powers under s 84(2) are clear: . . . the exercise of the powers does not infringe any provision of the Bill of Rights; the exercise of the powers is also clearly constrained by the principle of legality and, as is implicit in the Constitution, the President must act in good faith and must not misconstrue the powers.”
outlined the constitutional framework and manner in which the exercise of public power is regulated:
- “The exercise of public power is regulated by the Constitution in different ways. There is a separation of powers between the Legislature, the Executive and the Judiciary which determines who may exercise power in particular spheres. An overarching Bill of Rights regulates and controls the exercise of public power, and specific provisions of the Constitution regulate and control the exercise of particular powers.”

Question 21

Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; CASAC v President of the Republic of South Africa and Others 2018

Answer 21

• Multiple criminal charges against former President Zuma at a time when power to appoint the National Director of public Prosecutions (s 179(1)(a)) had to be exercised
• Applicants argued: President is conflicted per s 96(2)(b) of the Constitution – President cannot act in any way that is inconsistent with office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests;
• Applicant’s proposed solution? Section 90(1)(a) of the Constitution - When the President is absent from the Republic or otherwise unable to fulfil the duties of President, or during a vacancy in the office of President, Deputy President may act as President. see para [12]
• President – s 90(1) cannot be used in a case when you have a President capable of acting, would mean we could have two persons as President power; that even if President was conflicted, conflict falls away as he would have to exercise power with members of cabinet who were not conflicted.
• Court: ‘In a rights-based order, it is fundamental that a conflicted person cannot act; to act despite a conflict is self-evidently to pervert the rights being exercised as well as the rights of those affected’. Para [112]

Question 22

Singh v Minister of Justice and Constitutional Development and Others 2013

Answer 22

• Shortlisting criteria for magistrates excluded disability as criteria (driver’s license requirement could not be met by blind persons)
  -Singh argued failure to take disability into account violated her right not to be discriminated against on the grounds of disability.
• Magistrates Commission argued that there was no obligation to take disability into account, only race and gender
• Court: Section 174(2) includes disability - The Equality Court held that the provision in s 174(2) had to be considered in light of the Constitution as a whole. In this case, s 9(2) of the Constitution, read with the Equality Act, ‘clearly’ imposed ‘a complementary duty on the state to take active measures to promote the equality of people with disabilities’ para [24]
• Purpose of s 174(2): Redressing historic disadvantage - ‘The injunction to consider race and gender, in terms of section 174 (2) of the Constitution, when making judicial appointments is clearly fair and constitutional having regard to the history of South Africa. Importantly, is the need, in terms of the Constitution to advance the position of people with disabilities.’
• Promotes diversity which increases legitimacy and improves judicial outcomes – ‘The Constitution obliges that the judiciary should be legitimate and diverse, importantly, and also that the categories of people who were previously discriminated against should be advanced. The first obligation does not eclipse the latter but reinforces it and compliments it.’

Question 23

Van Rooyen and Others v S and Others

Question 24

Magistrates Commission and Others v Richard John Lawrence

Answer 24

• Mr Lawrence, a white male, applied for three posts to magistrates but not shortlisted
• Magistrates Commission transcript revealed race a huge factor in decision to not shortlist - ‘Take away the whites’
• Section 174(2) criteria must be balanced with other criteria – Magistrates Commission could not use s 174(2) as an upfront disqualifying measure for shortlisting
• ‘Take away the whites’ suggests the application of a rigid exclusionary criterion base on race. The record reflects the same position taken and practice applied by the Committee pertaining to the other two posts; a targeted exclusion of white candidates. It is manifest from the transcript that the Committee was not prepared to consider any of the other criteria in relation to Mr Lawrence. There ought to have been no fixed order or sequence of prioritisation of the listed criteria, but rather a consideration of all of the relevant criteria and, where necessary a balancing of the one against the other. There is always the question of the weight to be allocated to the different factors in any given situation. Depending on the circumstances, certain factors may have to assume greater significance than the others, but the Committee cannot adopt a blanket approach that prioritises one factor to the exclusion of all the other factors.
• ‘Mr Lawrence had criminal, civil and family law experience. The Committee did not balance the relevant experience, qualifications, needs of that office and the appropriate managerial skills, instead it used race as a guillotine to exclude from consideration candidates who were white.’
• ‘The legislative scheme does not permit a targeted group approach, precisely because no one factor can at the outset override or take precedence over other factors. The starting point of the exercise was therefore fundamentally flawed. The record shows that the process was rigid, inflexible and quota-driven. The blanket exclusion of white persons, no matter how high they may have scored in respect of the other relevant factors is revealing. Any white candidate, no matter how good, was mechanistically excluded.’

Question 25

Minister of Health and Others v Treatment Action Campaign and Others

Answer 25

- Concerned the public health care rights afforded to individuals under the Constitution and the state's obligation to take reasonable measures. Judgment by the Court confirms its obligation to review the state's actions in this regard. Two particular policies were challenged. One which provided Nevirapine to only two locations in the public health sector and for only 2 years and the other which stated that a comprehensive distribution of Nevirapine would only be considered after two years. The Court made a declaratory order defining these two infringements, and outlining the need to use the extra funds made available, to provide for the training of additional counsellors. An order requiring a report-back was not called for Judgment of the Court.

Question 26

Helen Suzman Foundation v Judicial Services Commission

Answer 26

- Recorded deliberations part of Rule 53 record? - Yes, JSC deliberations are relevant to decisions made thus relevant to rationality review - Must provide: the reasons for the decision by the JSC; the transcripts of the JSC interviews; each candidate’s application for appointment; comments on each candidate by various professional bodies and individuals; and related research, submissions and correspondence. The reasons for the decisions as distilled from the deliberations by the Chief Justice and recordings! - Judicial appointment process essential to strength of the judiciary - ‘This strength relies, in no small measure, on ensuring that our judicial appointment processes are able to attract and result in the selection of the best possible candidates to serve as judges. If we are to have a strong judiciary which enjoys public confidence and is capable of fulfilling its constitutionally mandated role, of course judges who – in accordance with the provisions of section 174(1) and (2) of the Constitution – are best placed to fulfil this mandate must be appointed.’ - What do these criteria entail?

Question 27

Mwelase and Others v Director General for Department of Rural Development and Land Reform and Another

Answer 27

- The Department’s objection to the Land Claims Court order derived fundamentally from separation of powers concerns: the special master would be an “outsider” whose work involved “a take-over” of the functions of the Department. This is the objection the Supreme Court of Appeal upheld, and it formed the kernel of its reasoning in overturning the Land Claims Court order. - No matter how egregious the breaches of the Constitution by the other arm are and how loud the facts of a particular case call for justice, a court may not step in and exercise powers or perform functions entrusted to other arms of the state. This is because the Constitution does not authorise the Judiciary to replace the other arms and exercise their powers or perform their functions where there is a total failure by those arms and that failure causes gross injustice on innocent third parties. It bears repeating that the role of the Judiciary is to enforce the Constitution by declaring that the other arm has breached the Constitution and ordering it to rectify the breach. In addition, the Judiciary may supervise the rectification process by the errant arm.

Question 28

Democratic Alliance v Public Protector; CASAC v Pubic Protector (Estina)

Answer 28

High Court: - ‘The PP must, like any public functionary, exercise her powers and functions lawfully in compliance with her constitutional and statutory mandate and duties…. When the PP fails to discharge her mandate and duties, the strength of South Africa's constitutional democracy is inevitably compromised, and the public is left without the assistance of their constitutionally created guardian. It means that vital constitutional check against abuses of public power is lost.’ - ‘When the PP conducts an investigation, she is not entitled to be passive, supine, and static in her approach. Nor can she fail to address complaint or allegations without good cause or narrow the scope of investigations to the point that they do not meaningfully address the allegations and prima facie evidence of misconduct and impropriety in public affairs.’ [34 - Merely citing financial restraint in the investigation is not enough, must provide evidence. - Cannot ‘opt-out’ of investigating. - ‘Interpreting the PP's power to investigate a complaint of improper conduct as a 'power coupled with a duty to investigate', better promotes the constitutional objects and the rights in the Bill of Rights. It also ensures the impartiality and independence of the PP, by ensuring that the PP cannot be selective regarding which investigations to conduct and cannot be subjected to pressure by any person not to investigate complaint.’ - Investigation and remedial action not rationally related to the purpose - It is declared that in investigating and reporting on the Vrede Dairy Project for purposes of her report the PP failed in her duties under section 6 and 7 of the Public Protection Act and section 182 of the Constitution.

Question 29

South African Municipal Workers Union v Minister of Co-Operative Governance and Traditional Affairs

Answer 29

- Amendment Act promulgated in July 2011, to address increase of maladministration in municipalities, made sure that qualifications were hiring factor for municipal management positions, not party alliance. - The bill preceding the Amendment Act was submitted to Parliament as the Local Government: Municipal Systems Amendment Bill (Bill). Then the Bill was 'Tagged' by the Joint Tagging Mechanism (JTM), a committee of Parliament consisting of the Speaker and the Deputy Speaker of the National Assembly and the Joint Tagging Mechanism (JTM), a committee of Parliament consisting of the Speaker and the Deputy Speaker of the NA and the NCOP - SAMWU contended that the Amendment Act was incorrectly tagged as an ordinary bill not affecting the provinces (section 75 bill). It argued that the Bill should have been tagged as an ordinary bill affecting the provinces (section 76 bill), and should consequently have been passed in accordance with the provisions of section 76 of the Constitution.... SAMWU therefore asserted that the Amendment Act was invalid for want of compliance with section 76. - In Tongoane this Court held that the test for tagging must be informed by its purpose. In that matter, this Court recapitulated that the tagging process is not concerned with determining the sphere of government that has the competence to legislate on a matter, nor is it concerned with preventing interference in the legislative competence of another sphere of government. The process is concerned with the question of how a bill should be considered by the provinces and in the NCOP. - One of the purposes of tagging is therefore to determine the nature and extent of the input of provinces on the content of legislation affecting them.

Question 30

In Re: Constitutionality of the Liquor Bill - Facts

Answer 30

- Bill sought to comprehensively regulate liquor industry – including by addressing the history of the use of liquor as an instrument of control over Black people as part of the policy of apartheid, making the liquor industry more accessible to historically disadvantaged groups. - Key provisions of Bill: Divided economic activity in industry into manufacturing, distribution, and sales Prohibited cross-holdings – break down monopolies and open opportunities for those excluded from market under apartheid Divided government responsibilities across different spheres: distribution and manufacture (national) but prescribed how provinces would grapple with retail - Bill passed via s 76(1) procedure (Ordinary Bill affecting the provinces) - Sent for Presidential assent but President had reservations about constitutionality – not sure if national legislature had competence and referred to parliament for reconsideration - Parliament returned Bill to the President with no changes - President sent Bill to Constitutional Court – s 79(4) and s 84(2)(b) Constitutional Court – invitation to make representations on the Bill - Western Cape Province: Bill is a Schedule 5 matter as it deals with liquor licenses National legislature has no competence as s 44(2) not met Tagging Procedural argument – invalidly passed under s 76(1) procedure - Minister of Trade & Industry: Bill fell within Schedule 4 (concurrent competence) as it dealt with trade Even if it fell under Schedule 5, national legislature met the s 44(2) exception Core issue: What is the ambit of national and provincial powers conferred by the Constitution and their interrelation where, the national legislature is said to encroach on an exclusive provincial competence?

Question 31

Liquor Bill - Findings

Answer 31

- Had the national legislature encroached on the provincial’s exclusive legislative competence? - Inter-provincial (to include the national legislature) and intra-provincial (for the provincial legislature) - ‘From this it is evident that where a matter requires regulation inter-provincially, as opposed to intra-provincially, the Constitution ensures that national government has been accorded the necessary power, whether exclusively or concurrently under Schedule 4, or through the powers of intervention accorded by section 44(2). The corollary is that where provinces are accorded exclusive powers these should be interpreted as applying primarily to matters which may appropriately be regulated intra-provincially.’ - Test for legislative competence: Looks at the ‘pith and substance’ of the Bill – what is its purpose/its effect? - ‘[I]t will on occasion be necessary to determine the main substance of legislation, and hence to ascertain in what field of competence its substance falls; and, this having been done, what it incidentally accomplishes. This entails that a Court determining compliance by a legislative scheme with the competences enumerated in Schedules 4 and 5 must at some stage determine the character of the legislation. It seems apparent that the substance of a particular piece of legislation may not be capable of a single characterization only, and that a single statute may have more than one substantial character. Different parts of the legislation may thus require different assessment in regard to a disputed question of legislative competence.’ - Different sections of a Bill can have a different substantial character – must examine each to determine legislative competence

Question 32

Liquor Bill - Applying Findings to the Facts

Answer 32

- In this case the question was whether the ‘substance of the Liquor Bill, which depends not only on its form but also on its purpose and effect, is within the legislative competence of Parliament.’ [63] - The true substance of the Bill was directed at three objectives: i. The prohibition on crossholdings between the three tiers involved in the liquor trade, namely producers, distributors and retailers – concurrent competence as it related to regulating trade. [70] ii. The establishment of uniform conditions, in a single system, for the national registration of liquor manufacturers and distributors; and, in a further attempt at establishing national uniformity within the liquor trade – concurrent (wider than liquor licencing) but even if not, would meet the s 44(2) exception ‘national economic unity’. iii. The prescription of detailed mechanisms to provincial legislatures for the establishment of retail licensing mechanisms – no legislative competence – within Schedule 5 exclusive competence and s 44(2) not met.