ACTS TO BE REPEALED FOR CONSTITUTIONAL VIOLATION
ACTS TO BE REPEALED FOR CONSTITUTIONAL
VIOLATION
Legal Analysis and Recommendations
June 9, 2025
EXECUTIVE SUMMARY
This legal memorandum presents a comprehensive analysis of South African legislation that
contravenes the Constitution of the Republic of South Africa, 1996. Following extensive
constitutional review, this document identifies specific Acts that violate constitutional provisions
and recommends their repeal or substantial amendment. The analysis is based on the supremacy
of the Constitution as established in Section 2, which states that law or conduct inconsistent with
the Constitution is invalid, and the obligations imposed by it must be fulfilled.
1. INTRODUCTION
The Constitution of the Republic of South Africa, 1996 ("the Constitution") is the supreme law of
the Republic. Section 2 establishes that law or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled. This constitutional supremacy requires that all
legislation comply with the provisions and principles established in the Constitution.
This memorandum identifies Acts that, upon thorough legal analysis, have been found to violate
specific constitutional provisions. The analysis considers both procedural and substantive
constitutional requirements, with particular emphasis on Chapter 2 (Bill of Rights) violations.
2. LEGAL FRAMEWORK
2.1 Constitutional Supremacy
Section 2 of the Constitution establishes the principle of constitutional supremacy, stating: "This
Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled."
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2.2 Limitation of Rights
Section 36 of the Constitution provides that rights in the Bill of Rights may be limited only in
terms of law of general application to the extent that the limitation is reasonable and justifiable in
an open and democratic society based on human dignity, equality, and freedom. Any limitation
that fails to meet these criteria renders the limiting legislation constitutionally invalid.
2.3 Judicial Review
Section 172(1) of the Constitution empowers courts to declare any law that is inconsistent with
the Constitution invalid to the extent of its inconsistency. This power of judicial review serves as
a check on legislative authority and ensures constitutional compliance.
3. METHODOLOGY
The constitutional analysis employed in this memorandum follows a systematic methodology:
1.
2.
3.
4.
5.
6.
Identification of the relevant constitutional provisions potentially violated by each Act;
Analysis of the content and effect of the legislation in question;
Assessment of whether the legislation limits constitutional rights;
Where limitations are identified, application of the Section 36 limitations analysis;
Determination of whether the legislation is constitutionally compliant or in violation;
Recommendation for repeal or amendment based on the severity and extent of the
violation.
4. ACTS IDENTIFIED FOR REPEAL
4.1 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(PIE Act)
Constitutional Violations:
•
Section 25 (Property Rights): The PIE Act effectively deprives property owners of their
right to control and use their property by creating procedural barriers that are unreasonably
burdensome and time-consuming, without providing adequate compensation.
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•
Section 9 (Equality): The Act creates an unequal burden on property owners versus
unlawful occupiers, violating the right to equal protection and benefit of the law.
•
Section 13 (Slavery, Servitude and Forced Labour): By compelling property owners to
maintain properties they cannot access or control while bearing financial responsibility for
rates, taxes, and utilities, the Act creates a form of involuntary servitude.
Analysis: While the PIE Act aims to prevent arbitrary evictions, its implementation has resulted
in severe and unjustifiable limitations on property rights. The Act fails the proportionality test
under Section 36, as it imposes excessive burdens on property owners without adequate
procedural safeguards or compensation mechanisms. The extended timeframes for eviction
proceedings, often lasting years, effectively amount to uncompensated expropriation.
Recommendation: Repeal and replace with legislation that balances the rights of unlawful
occupiers against the constitutional property rights of owners, with expedited procedures and
clear compensation mechanisms for property owners.
4.2 National Credit Act 34 of 2005
Constitutional Violations:
•
•
•
Section 10 (Human Dignity): The Act's debt review and collection procedures often
subject debtors to degrading treatment through invasive financial scrutiny and public
exposure of financial difficulties.
Section 14 (Privacy): The extensive information gathering and sharing provisions violate
the right to privacy by allowing broad access to personal financial information without
adequate safeguards.
Section 22 (Freedom of Trade, Occupation and Profession): The Act imposes excessive
regulatory burdens on credit providers that unreasonably limit their ability to conduct
business.
Analysis: While consumer protection is a legitimate aim, the National Credit Act imposes
disproportionate restrictions and compliance burdens. The Act's information sharing provisions
fail to adequately protect privacy rights, and its regulatory framework creates barriers to entry
that limit economic freedom without sufficient justification.
Recommendation: Repeal and replace with legislation that provides consumer protection while
respecting privacy rights and reducing regulatory burdens to the minimum necessary to achieve
legitimate consumer protection goals.
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4.3 Municipal Property Rates Act 6 of 2004
Constitutional Violations:
•
Section 25 (Property Rights): The Act effectively allows for uncompensated
expropriation through excessive property taxation without adequate limitations or
procedural safeguards.
•
Section 33 (Just Administrative Action): The valuation and objection procedures often
fail to meet the standards of procedural fairness and reasonableness required by
administrative justice.
•
Section 9 (Equality): The Act permits discriminatory application of rates policies between
different categories of properties without sufficient rational basis.
Analysis: The Municipal Property Rates Act grants municipalities excessive discretion in
determining rates without adequate constitutional constraints. The lack of a clear contractual
basis for property taxes, combined with inadequate procedural safeguards in the valuation and
objection processes, renders the Act constitutionally deficient.
Recommendation: Repeal and replace with legislation that establishes clear limitations on
municipal rating powers, strengthens procedural fairness in valuations, and ensures that property
rates do not amount to de facto uncompensated expropriation.
4.4 Regulation of Interception of Communications Act 70 of 2002 (RICA)
Constitutional Violations:
•
•
•
Section 14 (Privacy): RICA permits extensive surveillance without adequate judicial
oversight or notification requirements, violating the right to privacy.
Section 16 (Freedom of Expression): The Act's surveillance provisions create a chilling
effect on free expression by enabling monitoring of communications without sufficient
safeguards.
Section 34 (Access to Courts): The secret nature of interception directions effectively
denies subjects access to courts to challenge surveillance measures.
Analysis: While national security and crime prevention are legitimate aims, RICA fails to
incorporate sufficient safeguards against abuse. The Constitutional Court has already found
aspects of RICA unconstitutional in AmaBhungane Centre for Investigative Journalism NPC and
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Another v Minister of Justice and Correctional Services and Others [2021] ZACC 3, highlighting
the need for post-surveillance notification and improved judicial oversight.
Recommendation: Repeal and replace with legislation that incorporates robust judicial
oversight, post-surveillance notification requirements, and enhanced transparency measures to
protect privacy and freedom of expression while still enabling legitimate security and law
enforcement objectives.
4.5 South African Reserve Bank Act 90 of 1989
Constitutional Violations:
•
Section 1 (Republic of South Africa): The private ownership structure of the Reserve
Bank compromises national sovereignty by placing monetary policy under the influence of
private shareholders.
•
Section 195 (Basic Values and Principles Governing Public Administration): The Act
fails to ensure transparency, accountability, and efficient economic use of resources in the
management of the nation's monetary policy.
•
Section 224 (Central Bank): While this section establishes the Reserve Bank, its
implementation through the Act creates conflicts between private interests and the public
mandate to protect the value of the currency in the interest of balanced and sustainable
economic growth.
Analysis: The private ownership structure of the South African Reserve Bank creates inherent
conflicts of interest between public welfare and private banking interests. The Act's provisions
enabling foreign influence over South African monetary policy through international banking
organizations compromise national sovereignty in a manner inconsistent with constitutional
principles.
Recommendation: Repeal and replace with legislation that establishes full public ownership and
democratic accountability of the Reserve Bank, while maintaining appropriate operational
independence in monetary policy implementation.
4.6 Electronic Communications and Transactions Act 25 of 2002
Constitutional Violations:
•
Section 14 (Privacy): The Act's data collection and retention provisions fail to adequately
protect personal information from unauthorized access and use.
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•
Section 16 (Freedom of Expression): Provisions regarding liability for internet service
providers create a chilling effect on free expression by incentivizing excessive content
removal.
•
Section 33 (Just Administrative Action): The Act grants administrative authorities
excessive discretion without adequate procedural safeguards.
Analysis: While the Act aims to facilitate electronic communications and transactions, it predates
modern data protection standards and fails to incorporate adequate safeguards for privacy and
freedom of expression. Its provisions regarding cryptography providers and authentication
service providers grant excessive regulatory powers without sufficient limitations.
Recommendation: Repeal and replace with updated legislation that incorporates modern data
protection principles, clear limitations on administrative powers, and balanced intermediary
liability provisions that protect both freedom of expression and legitimate regulatory interests.
4.7 Extension of Security of Tenure Act 62 of 1997 (ESTA)
Constitutional Violations:
•
•
•
Section 25 (Property Rights): ESTA imposes severe restrictions on property owners'
rights without adequate compensation, effectively amounting to uncompensated
expropriation in many cases.
Section 13 (Slavery, Servitude and Forced Labour): The Act creates a form of servitude
by forcing property owners to maintain relationships with occupiers against their will and
bear financial burdens without adequate recourse.
Section 9 (Equality): The Act creates an unequal burden on agricultural landowners
compared to other property owners, without sufficient justification for this differential
treatment.
Analysis: While ESTA aims to protect vulnerable rural occupiers, its implementation has resulted
in disproportionate burdens on property owners. The Act fails to strike a reasonable balance
between occupier protection and property rights, particularly in its procedural requirements and
compensation provisions.
Recommendation: Repeal and replace with legislation that provides necessary protections for
vulnerable occupiers while respecting constitutional property rights through expedited
procedures, clear compensation mechanisms, and more balanced allocation of rights and
responsibilities.
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4.8 Rental Housing Act 50 of 1999
Constitutional Violations:
•
•
•
Section 25 (Property Rights): The Act imposes excessive restrictions on landlords'
property rights without adequate procedural safeguards or compensation mechanisms.
Section 33 (Just Administrative Action): The Rental Housing Tribunal procedures often
fail to meet standards of procedural fairness and reasonableness.
Section 22 (Freedom of Trade, Occupation and Profession): The Act imposes
unreasonable regulatory burdens on small-scale landlords that limit their ability to conduct
business.
Analysis: While tenant protection is a legitimate aim, the Rental Housing Act creates an
imbalanced regulatory framework that disproportionately burdens landlords. The Act's eviction
procedures, when combined with the PIE Act, create excessive delays and costs that amount to de
facto expropriation without compensation.
Recommendation: Repeal and replace with legislation that balances tenant protections with
respect for property rights, including expedited dispute resolution procedures, clear compensation
mechanisms for landlords, and proportionate regulatory requirements.
5. CONSTITUTIONAL PRINCIPLES SUPPORTING REPEAL
5.1 Principle of Constitutional Supremacy
The principle of constitutional supremacy, established in Section 2 of the Constitution, requires
that all law and conduct must be consistent with the Constitution. The identified Acts contravene
specific constitutional provisions and therefore must be declared invalid to the extent of their
inconsistency.
5.2 Principle of Legality
The principle of legality requires that all exercises of public power must be lawful and rational.
The identified Acts enable exercises of public power that fail to meet these requirements,
particularly in their procedural aspects and substantive impacts on constitutional rights.
5.3 Principle of Proportionality
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Section 36 of the Constitution requires that limitations of rights must be reasonable and
justifiable in an open and democratic society. The identified Acts impose limitations on
constitutional rights that are disproportionate to their stated aims and therefore fail to meet this
constitutional standard.
6. LEGAL PRECEDENTS
Several Constitutional Court judgments support the findings in this memorandum:
1. First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another [2002]
ZACC 5: Established the test for determining whether a deprivation of property is arbitrary and therefore
unconstitutional.
2. Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7: While recognizing the need to protect unlawful
occupiers from arbitrary eviction, emphasized that courts must balance competing constitutional rights
including property rights.
3. AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional
Services and Others [2021] ZACC 3: Found aspects of RICA unconstitutional for failing to provide adequate
safeguards for privacy and access to courts.
4. Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51:
Emphasized that international agreements cannot override constitutional rights and principles.
7. RECOMMENDATIONS
Based on the constitutional analysis presented in this memorandum, the following
recommendations are made:
1.
2.
3.
The identified Acts should be declared unconstitutional and invalid to the extent of their
inconsistency with the Constitution.
Parliament should repeal these Acts and replace them with legislation that respects
constitutional rights and principles.
In drafting replacement legislation, Parliament should ensure:
◦
Adequate protection of property rights, including compensation mechanisms where
property rights are limited;
◦
Robust privacy protections and procedural safeguards in surveillance and data
collection;
◦
Balanced regulatory frameworks that do not impose disproportionate burdens;
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4.
◦
Clear and expedited procedures for dispute resolution;
◦
Transparent and accountable governance structures for public institutions.
During the transition period between repeal and replacement, interim measures should be
implemented to mitigate the constitutional violations identified.
8. CONCLUSION
The Acts identified in this memorandum contravene specific provisions of the Constitution of the
Republic of South Africa, 1996. In accordance with the principle of constitutional supremacy
established in Section 2, these Acts should be declared invalid to the extent of their inconsistency
and repealed by Parliament. Replacement legislation should be drafted with careful attention to
constitutional rights and principles to ensure compliance with the supreme law of the Republic.
Constitutional Analysis Division
Plebeian Tribunal of South Africa
June 9, 2025
ACTS TO BE REPEALED FOR CONSTITUTIONAL VIOLATION | Legal Analysis and Recommendations | June
9, 2025
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