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Constitutional Eighteenth Amendment Bill: An Unnecessary Amendment to the South African Constitution?
Abstract
This note examines the justifications for the proposed constitutional reforms in the Eighteenth Amendment. I argue that proponents
of any constitutional reforms bear an onerous burden of persuasion and must be able to justify approval of the Eighteenth
Amendment on substantive grounds. The note advances four main arguments against the Eighteenth Amendment. Firstly, that the
proposition in the Eighteenth Amendment is probably contrary to the South African constitutional scheme and that it may not
be reconciled with other features or provisions in the Constitution. Secondly, that if approved in its current form, the Eighteenth
Amendment would breach separation of powers. Thirdly, that in order to enhance the checks and balances in the exercise of
executive authority, it would make sense to involve parliament in the appointment of the National Director. Lastly, since
the Constitution permits and mandates civil society or public participation in the legislative processes, the article (with
some exceptions) argues in favour of civil society participation in the appointment of the National Director.
This article examines Justice Ngcobo’s profound contribution to the development of the foundational jurisprudence on separation of powers in South Africa. The article is premised on the fact that Ngcobo can be better understood in the context of his contribution to the foundational jurisprudence. In this way, we will better comprehend how Ngcobo’s jurisprudence fits into our contemporary understanding of the Constitution. The key question this article seeks to investigate is to what extent has Ngcobo’s jurisprudence on separation of powers has impacted or shaped South African constitutional law. The article specifically investigates whether, in his contribution to the constitutional jurisprudence on separation of powers, Ngcobo developed a political question doctrine theory for South Africa. I find that he did, and that while Justice Ngcobo’s political question jurisprudence was not clearly articulated or endorsed by the majority of the Justices while he was on the bench, the Constitutional Court has recently unanimously endorsed some of his political question doctrine theories and arguments thereby crystallising the political question theory in South Africa. The article examines Ngcobo’s contribution through the lens of the judgments that he penned as well as his academic commentaries
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