Is it constitutional? Describe the guideline that a public officials must follow to determine whether an action is permissible by law in South Africand make examples and reference the author and year?

In South Africa, the constitution is the supreme law of the land and all actions taken by public officials must be in accordance with the constitution. The guideline that public officials must follow to determine whether an action is permissible by law is to ensure that the action is consistent with the principles and values enshrined in the constitution.

For example, in the case of Economic Freedom Fighters v Speaker of the National Assembly and Others (2016), the Constitutional Court of South Africa ruled that the President of South Africa had violated the constitution by failing to uphold, defend and respect the constitution as the supreme law of the land. This case serves as a clear example of how public officials must adhere to the constitution in all their actions.

Another example is the case of Minister of Home Affairs and Another v Fourie and Another (2005), where the Constitutional Court of South Africa ruled that the prohibition of same-sex marriage was unconstitutional and violated the right to equality and dignity enshrined in the constitution. This case demonstrates how public officials must ensure that their actions are in line with the fundamental rights and values of the constitution.

In conclusion, public officials in South Africa must always consider whether their actions are consistent with the principles and values of the constitution in order to determine whether they are permissible by law. Failure to do so can result in legal challenges and potential violations of the constitution.

Constitutional Provision

Section 33 of the Constitution of the Republic of South Africa, 1996 provides for the concept of legality in public administration. It states that:

> "(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair."

Guideline for Public Officials

To determine whether an action is permissible by law, public officials in South Africa must follow the following guideline:

1. Lawfulness:

- The action must be authorized by a valid law or provision in the Constitution.
- The law must have been properly enacted and within the powers of the relevant legislature.
- The action must not violate any other laws or constitutional principles.

2. Reasonableness:

- The action must be reasonably necessary for the purpose it seeks to achieve.
- It must be proportionate to the desired outcome.
- It must not be arbitrary or capricious.

3. Procedural Fairness:

- The affected individual must be given an opportunity to be heard before the decision is made.
- The decision-making process must be transparent and impartial.
- Reasons must be provided for the decision.

Examples:

- Lawful: A traffic officer issuing a ticket for speeding where there is a valid law authorizing such action.
- Unlawful: A local authority demolishing a house without following due process or having the necessary legal authority.
- Reasonable: A school disciplining a student for misconduct where the punishment is proportionate to the offense.
- Unreasonable: A municipality imposing a tax that is excessive and disproportionate to the services provided.
- Procedurally Fair: A court hearing where both parties have the opportunity to present their case and the decision is based on evidence.
- Procedurally Unfair: A tribunal that reaches a decision without allowing the affected party to participate.

Author and Year:

- "South African Public Law" by Andries N. du Plessis, 2019.