Recommended Reading

1. Pierre de Vos and Warren Freedman South African Constitutional Law in Context (2021) Chapters 2 and 4

2. Constitution of the Republic of South Africa, Chapter 4

3. D Chirwa and P Ntliziywana 'Political Parties and their Capacity to Provide Parliamentary Oversight' in H Thuynsma et al (eds) (2017) Political Parties in South Africa: Do they Underpin or Undermine Democracy?

4. United Democratic Movement v Speaker, National Assembly [2017] ZACC 21

5. Economic Freedom Fighters v Speaker, National Assembly [2017] ZACC (judgment of 29

December 2017)

6. Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC)

Question:

Assume that the Independent Electoral Commission announces that the 2024 national elections will be held in April 2024. This announcement kickstarts the election campaigns of most political parties. During the months running up to the election, several print and electronic media companies (newspapers and magazines) publish investigations and opinions detailing alleged corruption and maladministration perpetrated by members of the governing party. After receiving several complaints about these news articles, the Minister of Communications submits a Bill to Parliament that would make a Media

Appeals Tribunal (MAT). The Bill is aimed at addressing the alleged shortcomings and reckless reporting by the print and electronic media in South Africa. The Bill provides for the creation of a statutory body, appointed by the President and accountable to the National Assembly, to hear complaints from members of the public about inaccurate and damaging reporting by print and electronic media.

The National Assembly Portfolio Committee on Communications is tasked with processing the Bill. It invites members of the public to make both written and oral submissions on the Bill. However, it gives them only four weeks in which to make these submissions. The reason offered for this short period is that the Bill needs to be passed ahead of the National Elections to ensure that the elections are not adversely affected by false and reckless reporting.

At the oral hearings set up to get the view of the public on the new Bill, civil society groups make representations about how the Bill limits a fundamental right for any functioning constitutional democracy, that is, the right to freedom of expression. The Portfolio Committee gives the civil society groups an opportunity to make representations. However, apart from reading extracts of the Bill, the members of the Portfolio Committee refuse to answer questions posed to them. One member of the Portfolio Committee was heard whispering to his colleague, "We are not here to answer to these agents; we already have a mandate from the people who elected us". Subsequently, the Portfolio Committee makes no substantial amendments to the Bill. The Bill is then passed by the National Assembly (and afterwards by the National Council of Provinces) in almost the exact format in which the Minister tabled it. It is then signed into law by the President.

Before the Constitutional Court, the constitutionality of the new Act is challenged on several grounds, including that the National Assembly failed to comply with section 59 of the Constitution when it passed the Bill.

You are a clerk for one of the judges on the Constitutional Court. Your judge asks you to draw up a memorandum in which you set out the legal position (referring to relevant case law and other sources) and evaluate whether the challenge to the constitutionality of the new Act, based on section 59 of the Constitution, should succeed or not.